NEW  JERSEY  EQUITY  REPORTS, 

VOLUME  V. 
HALSTED,  VOLUME  I. 


j  si  r  s  "*  ^  , 

REPORTS  OF  CASES 

DETERMINED  IN  THE 

COURT  OF  CHANCERY, 


AND   IN   THE 


PREROGATIVE  COURT, 

AND,  ON  APPEAL,  IN  THK 

COURT  OF  ERRORS  AND  APPEALS, 


CF  THS 


STATE  OF  NEW  JERSEY. 


OEORGKE  B.  HALSTED,  Reporter. 


VOLUMEJ. 
SECOND  EDITION: 


WITH    REFERENCES  SHOWING  WHERE    THE   CASES    HAVE    BEEN  CITED, 
FIRMED,   OVERRTILED,   QUESTIONED,   LIMITED,   ETC.,  DOWN  TO   PART 
I,  VOL.  XXXIX,  N.  J.  LAW  REPORTS  (X  VROOM),  AND  PART  I, 
VOL.  XXVIII,  N.  J.  EQ.  REPORTS  (l  STEW.)i  INCLUSIVE. 


£7  John  Linn,  Esq.,  of  the  Hudson  Co.  Bar. 


JERSEY  CITY: 
FREDERICK  D.  LINN  &  CO. 

1886. 


.uj  "Volume  commences  with  the  decisions  in  Chan- 
cery by  the  Chancellor  appointed  under  the  new  constitution, 
adopted  the  15th  of  August,  1844. 

ri 

r 
53 


OLIVER  SPENCER  HALSTED, 

CHANCELLOR. 

Appointed  February  6th,  184C 


778"81 


TABLE  OF  CASES  REPOKTED. 


The  letter  v  follows  the  name  of  the  complainant. 


Abrahams,  Bobbins  v 16,  51,  465 

Adamson  v.  Ex'rs  of  Adainson....  349 

Albright,  Van  Scoten  v 467 

Allen,  Batton  v 99 

Anderson  v.  Ex'rs  of  Hendrickson,  106 


B. 

Baldwin,  Mayne  v ...  454 

Ballentine  v.  Ballentine 471,  519 

Batton  v.Allen 99 

Bayles  v.  Staats 513 

Bell's  Adra'r  v.  Hall... 49,  477 

Blair  v.  M'Donnell „  327 

Blydenburgh,  Cotheal  v 17,  631 

Brick,  Getsinger  v 391 

Brisley  v.  Jones 512 

Brittan,  Chetwood  v 628 

Brokaw,  Runyon  v 340 

Brown,  Washer  v 81 

Bruce,  Mann  v. 413 

Bullock  v.  Ex'r  of  Butcher 77 


C. 

Campfield  v.  Johnson ^ 245 

Cavalier's  Ex'r  v.  Huffman 354 

Chegary  v.  Scofield 525 

Chetwood  v.  Brittan 628 

Colt,  Kean  v 365 

Commercial  Bank  v.  Reckless,430,  650 

Cook's  Ex'rs,  Ware  v 193 

Cooper  v.  Cooper 9 

Cooper's  Ex'r  v  Cooper 498 

Corrigan  v.  The  Trenton   Dela- 
ware Falls  Company 52,  232 

Cotheal  v.  Blydenburgh 17,  631 


D. 
Daniels,  Hatch  v 14 


Degraw,  Moore  v 


346 


Dernarest,  Lovett  y -  113 


E. 


Edsall,  Hamburgh  Manufacturing 

Company  v 249 

Engle  v.  Haines ...  186 

F. 
Fisher's  Ex'rs,  Wilson  y... 493 


G. 

Garr  v.  Hill 639 

Geroe,  Winter  v 319,  655 

Getsinger,  Brick  v 391 

Giflbrd,  Westcott  v 24 

Godwin,  Mechanics'  Bank  of  Pat- 

erson  v 334 

IGreen's  Adm'r,  Tuckerv 380 


H. 

Haines,  Engle  v 186 

Haines,  Ross  v 632 

Hall,  Bell's  Adm'r  v..... 49,  477 

Hamburgh  Manufacturing    Com- 
pany v.  Edsall.... 249 

Hatch  v.  Daniels 14 

Hazen's      Adm'rs    v.     Tillman's 

Heirs  and  Devisees 303 

Hendrickson's  Ex'r,  Anderson  v..  106 

Hill,  Garr  v 639 

Holsman,  Society  for  Useful  Man- 
ufactures v 126 

Hopper  v.  Sisco 343 

Huffman,  Cavalier's  Ex'r  v 354 

Hulmes  v.  Thorpe 415 


J. 


Jolly's  Will 456 

Johnson,  Campfield  v 245 

Johnson's  Adiu'rs,  Williamson  v.f  537 
Jones,  Brisley  v 512 


TABLE  OF  CASES  REPORTED. 


K. 

Jtean  v.  Colt  and  Society  for  Use- 
ful Manufactures 

Kimball  v.  Morton 

Kipp,  Soper  v 


Lawrence,  Rockwell  v.. 
Longstreet  v.  Shipman. 

Loomis,  Smith  v 

Lovett  v.  Demarest.... 


365 

26 

383 


20 

43 

60 

113 


M. 

Mann  v.  Bruce 413 

Mavne  v.  Baldwin 454 

M'Donnell,  Blair  v 327 

M'Knight  v.  Bobbins 229 

Mechanics'  Bank  of  Paterson  v. 

Godwin 334 

Moore  v.  Degraw 346 

Moore's  Adm'r  v.  Poland's  Adm'r  517 

Moore's  Ex'r  v.  Smith 649 

Morris  Canal  and  Banking  Com- 
pany v.  Society  for  Useful  Man- 
ufactures   203 

Morris  Canal  and  Banking  Com- 
pany, Warne  v 410 

Morton,  Kimball  v 26 


N. 


Newbold's  Ex'ij,  Peacock  v 535 


O. 


Chert  v.  Obert 

Olden's  Ex'rs  v.  "White. 


397 
629 


P. 

Paterson  v.  Pntorpun  389 

}•••:•. '..ck  v.  Newbold's  Ex'rs 535 

Pierwm  v.  Ryerson  196 

Plume  v.  Small 460,  650 

Poland's  Adm'r,  Moore's  Adm'rv.  517 

Price,  Seelyv 231 


R, 

Receivers  of  Mechanics'  Bank  of 
Patorbon  v.  Godwin...  ..  334 


Reckless,    Commercial    Bank    of 

New  Jersey  v 430,  650 

Kedfield,  Tappan  v 339 

Robbins  v.  Abrahams 16,  51 

Robbins,  M'Knight  v 229,  642 

Rockwell  v.  Lawrence 20 

Rogers'  Ex'rs  v.  Rogers 32 

Rogers,  Lunacy  of 46 

Ross  v.  Haines 632 

Runyon  v.  Brokaw 340 

Ryerson,  Pierson  v 196 


S. 


Scofield  v.  Chegary 525 

Seely  v.  Price 231 

Shipman,  Longstreet  v 43 

Sisco,  Hopper  v 343 

Small,  Plume  v 460,  650 

Smith  v.  Loomis 60 

Smith  v.  Smith's  Ex'rs 484 

Society  for  Useful  Manufactures, 

Holsman  v 126 

Society  for  Useful  Manufactures, 
Morris  Canal  and  Banking  Com- 
pany v 203 

Society  for  Useful  Manufactures, 

Kean  v 365 

Somerville  Manufacturing  Com- 
pany, Van  Hook  v 137,  633 

Soper  v.  Kipp 383 

Staats,  Bayles  v 513 

State,  ex  rdatione  Mayne,  v.  Bald- 
win   454 

Stevens'  Adm'rs  Williams  v 119 

Stire»  v.  Slires 224 


T. 


Tappan  v.  Redfield 339 

Taylor  v.  Thomas 331 

Thorpe,  Hulmes  v..... 415 

Tillman's  Heirs  and  Devisees,  Ha- 

zen's  Adm'r  v 363 

Trenton  Delaware  Falls  Company, 

Corrigan  v 52,  232 

Tucker  v.  Green's  Adm'r..... 380 


V. 


Vandyne's  Ex're  v.  Vanness 485 

Van    Hook    v.    The    Somerville 

Manufacturing  Company. ...137,  63.? 
Van  ticoteu  v.  Albright „  467 


TABLE  OF  CASES  REPORTED. 


vu 


w. 

Ware  v.  Cook's  Ex'rs 193 

Warne  v.  Morris  Canal  and  Bank- 
ing Company 410 

Washer  v.  Brown 81 

Webster's  Administration  Bond...    89 


Westcott  v.  Gifford 24 

White,  Olden's  Ex'rs  v 628 

Williams  v.  Stevens'  Adm'r IIS 

Williamson  v.  Johnson's  Adni'rs,  537 

Wilson  v.  Fisher's  Ex'rs 4i>3 

Winter  v.  Ueroe .31  w,  656 


ADJUDGED   IN 


OF  THE 


STATE  OF  NEW  JERSEY 

APRIL  TERM,  1845. 


OLIVER  S.  HALSTED,  CHANCELLOR. 


WILLIAM  M.  COOPER  AND  OTHERS  v.  RALPH  V.  M.  COOPER. 

1.  A  general  charge  of  abuse  of  trust  is  not  sufficient  ground  for  the  inter- 
position of  the  court  to  restrain  an  executor  OJT  other  trustee  from  further 
interfering  with  the  estate. 

2.  Facts  showing  such  abuse  should  be  made  to  appear.    What  facts  not 
sufficient? 

3.  Where  the  legal  and  equitable  estates  are  united  in  the  same  person,  the 
equitable  estate  is  merged  in  the  legal. 

4.  A  trustee,  for  the  use  of  his  children,  of  a  tract  of  land  called  the  Abbot 
tract,  makes  his  will,  by  which,  after  giving  particular  parts  of  his  real 
estate  to  his  children  respectively,  he  directs  his  executors  to  sell  some  of  his 
lands,  expressly  excepting  the  Abbot  tract  from  the  power  to  sell,  and  then 
devises  all  the  residue  of  his  estate,  real  and  personal,  to  his  children.     On 
the  death  of  the  testator,  the  legal  estate  in  the  Abbot  tract  vests  in  his 
children,  the  cestuis  que  trust. 

5.  When  there  is  no  charge  in  the  bill,  that  a  tract  of  timber  land,  from 
which  the  defendant  is  enjoined  from  cutting,  belongs  to  the  estate  of  which  the 

VOL.  I.A  9 


10  CASES  IN  CHANCERY. 

Cooper  v.  Cooper. 

complainants  are  devisees,  and  the  answer  denies  that  the  timber  belongs  to 
the  estate,  and  avers  that  .it  belongs  to  the  defendant,  the  injunction  will  be 
dissolved. 

The  bill  in  this  case  was  filed  on  the  twenty-eighth  of  Janu- 
ary, eighteen  hundred  and  forty-five,  by  devisees  under  the  will 
of  Benjamin  B.  Cooper,  deceased,  against  the  defendant,  as  an 
executor  of  and  trustee  under  the  will,  for  an  account,  and  for 
sn  injunction  restraining  him  from  any  further  exercise  of  power 
as  executor  or  trustee,  and  from  cutting  timber  on  the  lands  of 
the  estate.  The  injunction  was  granted  as  prayed  for.  The 
defendant  filed  his  answer,  and  thereupon  moved  to  dissolve  the 
injunction.  The  facts  will  sufficiently  appear  in  the  opinion  of 
the  court, 

W.  Halsted,  in  support  of  the  motion. 
Jeffers,  contra. 

THE  CHANCELLOR.  The  first  branch  of  the  injunction 
restrains  the  defendeut  from  any  further  exercise  of  power  as  ex- 
ecutor of  or  trustee  under  the  will,  and  from  collecting  or  receiving 
any  money  due  to  the  estate  of  the  testator.  The  charges  in 
the  bill  under  which  the  injunction  in  this  respect  was  granted, 
are,  that  the  will  was  proved  in  April,  eighteen  hundred  and 
thirty-five;  that  the  defendant  immediately  possessed  himself  of 
nearly  all  the  personal  estate  of  the  testator,  amounting  by  the 
appraisement  to  about  twenty  thousand  dollars;  that  in  eighteen 
hundred  and  thirty-eight  he  failed,  and  applied  for  the  benefit  of 
the  insolvent  laws,  and  that  in  that  year  all  his  property,  real 
and  personal,  was  sold  by  the  sheriff  of  Gloucester  county  ; 
that  in  eighteen  hundred  and  forty-two  he  applied  for  the  bene- 
fit of  the  bankrupt  law,  and  was  discharged  as  a  bankrupt; 
that  he  has  not  settled  any  account,  as  such  executor,  in  the 
Orphans'  Court  of  the  county  of  Gloucester,  nor  any  account 
with  his  co-executors;  that  he  has  in  his  hands  funds  of  the 
estate  to  the  amount,  as  the  complainants  believe,  of  fifteen 
thousand  dollars;  and  that  debts  against  the  estate,  to  the 
amount  of  several  thousand  dollars,  remain  unpaid.  There  is 
then  a  charge,  in  general  language,  that  he  has  grossly  abused 


APRIL  TERM,  1845.  11 

Cooper  v.  Cooper. 

his  trust  as  executor  and  trustee,  not  only  by  the  commission  of 
waste  of  the  real  estate  and  by  squandering  the  personal  estate, 
but  by  gross  mismanagement  and  the  want  of  common  pru- 
dence. 

The  answer  states  that  the  defendant  received  but  about 
five  thousand  dollars  of  the  personal  property  appraised,  except 
about  two  thousand  one  hundred  dollars  of  trust  funds  held  by 
the  testator  for  other  persons,  which  were  appraised  as  part  of 
the  personal  estate;  admits  his  failure  in  eighteen  hundred  and 
thirty-eight,  and  the  sale  of  his  property  by  the  sheriff  in  that 
year,  and  his  discharge  as  a  bankrupt  in  eighteen  hundred  and 
forty-two,  and  that  he  has  not  settled  any  account  as  executor, 
cither  in  the  Orphans'  Court  or  with  his  co-executors,  but  states 
that  he  is  ready  to  settle  his  accounts,  and  that  he  had  given 
notice,  some  time  before  the  filing  of  the  complainants'  bill,  of 
his  intention  to  settle  his  accounts  as  executor,  in  the  Orphans' 
Court  of  the  county  of  Gloucester.  The  answer  denies  that  he 
has  funds  of  the  estate  in  his  hands  to  any  amount,  and  states 
that  the  estate  is  indebted  to  him  for  moneys  advanced  by  him 
for  the  estate,  over  and  above  the  assets  received  by  him,  and 
denies  that  he  has  abused  his  trust,  in  the  same  general  lan- 
guage used  in  the  bill  charging  an  abuse  of  trust. 

It  is  within  the  jurisdiction  of  this  court  to  restrain  an  execu- 
tor or  other  trustee  who  abuses  his  trust,  from  further  interfering 
with  the  estate.  But  a  general  charge  of  abuse  of  trust  is  not 
sufficient  ground  for  the  interposition  of  the  court:  facts  show- 
ing such  abuse  should  be  made  to  appear. 

That  ten  years  have  elapsed  since  the  death  of  the  testator, 
and  that  the  executor  has  not  settled  his  account  in  the  Orphans' 
Court,  is  not  sufficient. 

Nor  will  the  additional  facts  that,  in  the  meantime,  the  execu- 
tor failed  in  his  individual  business,  and  that,  three  years  before 
the  bill  filed,  he  was  discharged  as  a  bankrupt,  make  a  case  for 
the  interposition  of  the  court  by  injunction. 

In  the  case  before  us,  the  answer  denies  any  abuse  of  trust. 
In  reference,  therefore,  to  so  much  of  the  injunction  as  restrains 
the  defendant  from  any  further  exercise  of  power  as  executor  or 
trustee  under  the  said  will,  and  from  collecting  or  receiving  any 
money  due  to  the  estate  of  the  testator,  it  will  not  be  retained. 


12  CASES  IN  CHANCERY. 

Cooper  v.  Cooper. 

The  special  object  of  the  injunction,  no  doubt,  was  to  restrain. 
the  defendant  from  cutting  timber  oil  the  lands  of  the  estate, 
or  causing  it  to  be  cut. 

He  admits  in  his  answer,  that  he  had  advertised  for  sale  the 
timber  on  two  hundred  and  fifty  acres  of  the  Abbot  tract,  and 
states  that  there  is  a  balance  now  due  for  taxes  on  the  lands 
in  this  state,  of  sixty-five  dollars,  and  that  there  are  tdxes  now 
due  on  the  lands  in  Pennsylvania,  amounting  to  twelve  hun- 
dred dollars,  and  that  the  proceeds  of  the  sale  of  the  two  hun- 
dred and  fifty  acres  of  timber,  will  not  be  more  than  sufficient 
to  pay  the  taxes  now  due,  and  that  it  is  his  intention  to  appro- 
priate the  proceeds  of  such  sale  to  the  payment  of  the  taxes 
against  the  estate  of  the  testator. 

In  reference  to  this  tract,  I  am  at  a  loss  to  understand,  from 
the  bill  and  answer,  how  the  defendant  claims  to  exercise  any 
power  or  authority  in  respect  to  it.  We  are  told,  by  both  bill 
and  answer,  that  the  testator  held  this  tract  in  trust  for  his  chil- 
dren, and  neither  the  bill  nor  the  answer  shows  that  this  trust 
devolved  on  the  defendant.  The  testator  was  sole  trustee  of 
this  Abbot  tract,  for  the  use  of  his  children.  He  made  a  will, 
by  which,  after  giving  particular  parts  of  his  real  estate  to  his 
children  respectively,  he  directs  his  executors  to  sell  some  of  his 
lands,  expressly  excepting  the  Abbot  tract  from  the  power  to 
sell,  and  then  devises  all  the  residue  of  his  estate,  real  and  per- 
sonal to  his  children,  of  whom  the  defendant  is  one. 

We  are  under  no  necessity,  in  this  case,  of  examining  the 
question  whether  general  words  in  a  devise  will  pass  a  trust 
estate,  i.  e.,  the  estate  of  the  trustee.  [The  words  "trust  estate" 
seem  to  be  used  with  some  confusion  in  the  books — sometimes 
to  express  the  estate  of  the  trustee,  and  sometimes  that  of  the 
cestui  que  tnwt.] 

The  rule  formerly  was,  as  it  seems,  that  general  words  would 
not  pass  a  trust  estate,  unless  there  appeared  to  be  an  intention 
that  it  should  pass.  This  was  said  to  be  the  rule,  by  Lord 
llosslyn,  in  1800,  though  he  said  that  perhaps  the  reverse  would 
have  been  the  more  convenient  rule,  as  it  might  be  easier  to 
tiinl  a  devisee  than  an  heir.  In  a  subsequent  case,  the  muster  of 
the  rolls  held  that  a  trust  estate  would  pass  by  a  general  devise, 
unless  an  intention  to  the  contrary  could  be  inferred  from  the 


APRIL  TERM,  1845.  13 

Cooper  v.  Cooper. 

words  of  the  will,  or  objects  of  the  testator;  and  Lord  Eldon  said 
he  did  not  feel  strong  enough,  upon  authority  or  reasoning,  to 
dissent  from  the  decision  of  the  master.  But  in  the  case  in 
hand,  quacunque  via  data,  the  result  is  the  same.  If  the  legal 
estate  of  the  testator  as  trustee  for  his  children,  passed  by  the 
devise,  then  the  legal  and  equitable  estates  became  united  in  the 
children.  If  the  legal  estate  did  not  pass  by  the  devise,  it  de- 
scended to  his  heirs-at-law,  his  children,  the  cestuis  que  trust. 
In  either  case,  the  legal  and  equitable  estates  are  united  in  the 
same  persons,  and  the  equitable  estate  merged  in  the  legal 
estate. 

The  Abbot  tract,  then,  on  the  death  of  the  testator,  vested 
in  his  children  as  their  own  property  ;  it  was  not  subject  to  his 
debts. 

The  interest  of  Ralph  V.  M.  Cooper  in  this  tract  passed  to 
his  assignee  on  his  discharge  as  an  insolvent,  if  he  was  so  dis- 
charged ;  if  not,  it  passed  to  his  assignee  in  bankruptcy.  He 
has,  therefore,  now  no  interest  in  this  Abbot  tract  in  his  own 
right,  nor  any  power  in  reference  to  it,  or  the  timber  on  it,  as 
an  executor  of  the  said  will. 

There  seems  to  have  been  some  misapprehension  in  the  solic- 
itor who  drew  the  bill,  as  to  the  provisions  of  the  will  in  re- 
spect to  the  Abbot  tract.  The  bill  states  that  the  executors  of 
the  said  will  have  power  to  sell  timber  from  said  tract,  from  time 
to  time,  for  the  payment  of  taxes,  and  that  under  pretence  of 
power  under  the  said  will,  the  said  Ralph  had  advertised  the 
timber  on  two  hundred  and  fifty  acres  of  the  said  Abbot  tract, 
which  sale  is  not  necessary  for  the  payment  of  taxes.  But  the 
will  contains  no  such  power. 

If,  as  is  before  shown,  the  defendant  Ralph  has  no  interest 
in  this  Abbot  tract,  nor  any  power  or  authority  in  respect  to  it, 
as  executor,  it  may  be  said  that  the  threatened  cutting  would 
be  a  mere  trespass,  and  that  this  court  should  not  interfere. 
This  might  have  made  some  difficulty  as  to  the  granting  the 
injunction,  if  the  case  had  been  presented  in  this  light  by  the 
bill.  But  it  is  evident  that  both  parties  have  been  under  a  mis- 
apprehension as  to  the  position  in  which  the  executors  stood  in 
reference  to  this  tract;  and  inasmuch  as  the  executor  supposes, 
and  insists  by  his  answer,  that  he  has  a  right  to  cut  timber 


14  *      CASES  IN  CHANCERY. 

Hatch  v.  Daniels. 

from  this  tract,  to  pay  the  taxes  on  lands  in  Pennsylvania,  and 
on  lands  of  the  testator  in  this  state,  and  on  that  ground  moves 
to  dissolve  the  injunction  ;  the  court  must  deny  the  motion.  In 
reference  to  the  Abbot  tract,  therefore,  the  injunction  is  retained. 
As  to  the  twenty-five  acres,  the  answer  admits  that  the  de- 
fendant advertised  for  sale  the  timber  on  twenty-five  acres  in 
the  county  of  Camden,  as  charged  in  the  bill ;  but  says  that 
the  timber  so  advertised  is  his  own  property,  and  does  not  be- 
long to  the  estate  of  the  testator;  and  there  is  no  charge  or 
statement  in  the  bill  that  this  twenty-five  acres  does  belong 
to  the  estate.  As  to  this  tract,  therefore,  the  injunction  must 
be  dissolved. 

Order  accordingly. 


AKOET  M.  HATCH  v.  DAVID  DANIELS. 

On  the  positive  denial  of  the  allegations  of  the  bill  on  which  the  complain- 
ant rests  lib  equity,  an  injunction  will  be  dissolved. 


The  bill  in  this  case  states  that  in  eighteen  hundred  and 
thirty-nine,  the  complainant  and  Lewis  M.  Hatch  and  Daniel 
F.  Fleming  were  partners  in  trade  in  New  York,  under  the 
name  and  style  of  A.  M.  Hatch  and  Company.  That  said  firm 
became  embarrassed,  and  was  subsequently  dissolved,  having, 
before  the  dissolution,  become  indebted  to  the  defendant,  David 
Daniels,  for  goods  furnished  them  by  him,  for  part  of  which 
they  gave  to  said  defendant  their  partnership  notes,  the  other 
part  of  said  indebtedness  remaining  in  the  shape  of  book  account 
against  them. 

The  bill  then  charges  that  Fleming,  one  of  the  said  firm, 
on  a  fair  adjustment  of  accounts  with  the  complainant,  would, 
a.-,  the  complainant  believes,  be  much  indebted  to  him,  but  that 
he  had  left  New  York  and  gone  to  reside  at  Charleston,  South 
Carolina;  "  and  that  complainant  has  reason  to  believe,  and 
does  believe,  and  therefore  charges,  that  Fleming  has  either 
paid  off  the  said  notes  of  the  said  firm  of  A.  M.  Hatch  and 
Company  to  Dauiels,  or  made  some  arrangement  respecting  the 


APRIL  TERM,  1845.          •  15 


Hatch  v.  Daniels. 


same,  and  respecting  the  said  book  account  of  Daniels,  by 
which  the  same  constitute  no  valid  or  legal  claim  in  favor  of  the 
said  Daniels  against  the  complainant,  or  the  said  firm  of  A.  M. 
Hatch  and  Company;  and  that  the  object  is  to  recover  the 
amount  thereof  from  the  complainant,  in  the  name  of  the  said 
Daniels,  but  for  the  use  and  benefit,  wrongfully,  of  the  said 
Fleming." 

The  bill  prays  a  discovery,  to  enable  the  complainant  to 
make  defence  in  an  action  at  law  brought  in  tire  name  of 
Daniels  on  the  said  notes  and  book  account,  "  and  that  the  said 
Daniels  may  answer  what  arrangement  exists  between  him 
and  Fleming  (if  any)  respecting  said  notes  and  account ;  whether 
the  same  now  belong  to  him,  or  did  belong  to  him  at  the  time 
of  commencing  said  action  and  at  this  time;"  and  whether  he 
is  not  lending  his  name  for  the  prosecution  of  the  same,  for  the 
benefit  of  Fleming;  and  that  Daniels  may  be  enjoined  from 
further  prosecuting  the  said  action  at  law,  and  that  said  notes 
may  be  given  up  to  be  canceled,  and  the  said  account  receipted 
and  discharged,  and  for  further  relief. 

On  this  bill  an  injunction  was  granted  to  restrain  the  said 
suit  at  law,  which  was  noticed- for  trial  on  the  third  Tuesday  of 
October,  eighteen  hundred  and  forty-four. 

The  answer  positively  denies  the  existence  of  the  alleged  facts 
of  which  a  discovery  is  prayed,  and  on  the  supposed  existence 
of  which  the  injunction  was  granted. 

Hubbdl  moved  to  dissolve  the  injunction. 
W.  Pennington,  contra. 

THE  CHANCELLOR.  The  general  rule  is,  that  on  the  posi- 
tive denial  of  the  allegations  of  the  bill  on  which  the  com- 
plainant rests  his  equity,  an  injunction  will  be  dissolved.  There 
is  nothing  in  this  case  to  induce  the  court  to  retain  the  injunc- 
tion The  injunction  will  be  dissolved. 

Order  accordingly. 


16  CASES  IN  CHANCERY. 


Robbing  v.  Abrahams. 


JOHN    BOBBINS  v.   GEORGE  D.   ABRAHAMS   AND   HIS  WIFE, 
AND  JAMES  BURROWS,  TRUSTEE  OF  THE  WIFE. 

The  joint  and  several  answer  of  a  married  woman  and  her  trustee,  to  a  bill 
against  her  trustee,  her  husband  and  herself,  put  in  without  leave  of  the  court, 
may  be  suppressed  for  irregularity. 

In  this  case,  the  joint  and  several  answer  of  Phebe  Abra- 
hams, wife  of  George  D.  Abrahams,  and  of  her  trustee,  James 
Burrows,  had  been  put  in  without  the  leave  or  order  of  the  court. 
The  husband  had  not  answered. 

C.  S.  Green  moved  to  suppress  the  answer,  and  cited  Story' $ 
Eq.  PL,  §  71  ;  Mitford'a  PI.  105 ;  1  John.  Ch.  R.  24,  and  other 
authorities. 

P.  D.  Vroom,  contra,  admitted  the  general  rule,  but  submitted 
whether,  the  trustee  having  joined  in  the  answer,  it  should  be 
wholly  suppressed. 

THE  CHANCELLOR.  A  wife  cannot  answer  separately  from 
her  husband,  without  leave  of  the  court.'  The  answer  will  be 
suppressed,  and  the  defendants  will  be  ordered  to  answer  by  the 
tirst  day  of  the  next  term. 

Motion  granted,  and  order  accordingly. 

CITED  in  Collard  v.  Smilft,  2  Beas.  45 ;  Vanderveer  v.  Holcomb,  8  C.  E. 
Or.  558. 


CASES  IN  CHANCERY. 

JUNE  TERM,  1845. 


HENRY   COTHEAL  AND  DAVID  COTHEAL  v.  JEREMIAH  W. 
BLYDENBURGH  ET  AL. 

• 

1.  A,  living  in  New  York,  sells  to  B,  also  living  in  New  York,  a  tract  of 
land  in  New  Jersey,  and  takes  his  bond  for  part  of  the  consideration  money, 
with  seven  per  cent,  interest,  and  his  mortgage  on  the  lands  conveyed,  to  se- 
cure the  payment  of  the  bond.    The  mortgage  is  not  usurious. 

2.  The  exchange  of  the  papers  in  New  Jersey,  at  the  proper  record  office, 
will  not  make  the  mortgage  usurious ;  they  having  been  executed  and  ac- 
knowledged in  New  York,  and  a  sufficient  reason  for  not  exchanging  them 
there  being  shown. 

This  was  a  bill  for  the  foreclosure  of  a  mortgage.  The  com- 
plainants had  sold  to  J.  W.  Blydenburgh,  a  tract  of  land  in  this 
state,  and  taken  his  bond  for  a  part  of  the  consideration  money, 
with  seven  per  cent,  interest,  and  his  mortgage  on  the  lands 
sold  to  secure  the  payment  of  the  bond. 

Both  parties  resided  in  New  York,  and  the  papers  were  exe- 
cuted and  acknowledged  there,  but  were  exchanged  in  this 
state,  at  the  clerk's  office  of  the  county  in  which  the  lands  are 
situated. 

A  mortgage  on  the  same  lands,  from  Blydenburgh  to  Wads- 
worth,  a  witness  in  the  cause,  was  executed  and  acknowledged 
in  New  York,  at  or  about  the  time  when  the  mortgage  to  the 
complainants  was  executed  and  acknowledged. 

Wadsworth  testified  that  he  met  Blydenburgh  at  the  com- 
plainant's office  in  New  York,  a  few  days  after  the  mortgages 
were  acknowledged,  for  the  purpose  of  having  the  mortgages 
delivered,  and  of  Blydeuburgh's  getting  his  deed.  That  at  thig 

17 


18  CASES  IN  CHANCERY. 

Cotheal  v.  Blydenburgh. 

time,  there  was  a  proposition  made  as  to  the  exchange  and  de- 
livery of  the  papers.  That  one  of  the  complainants  objected  to 
delivering  the  deed,  unless  he  could  be  sure  that  the  mortgage 
to  them  was  put  on  record  before  the  mortgage  to  the  witness. 
That  he  was  present  at  a  subsequent  interview  between  the 
same  parties,  or  some  of  them,  in  relation  to  the  same  subject, 
at  the  office  of  Mr.  Feltus,  a  counselor-at-law  in  New  York, 
who  acted  as  counsel  for  the  complainants;  and  that  at  this 
interview  it  was  understood  that  Blydenburgh  and  one  of  the 
complainants  should  meet,  with  their  papers,  at  the  place  of 
record  in  New  Jersey,  the  next  day,  for  the  purpose  of  having 
the  papers  recorded  in  the  proper  order.  That  it  was  agreed 
that  the  witness'  mortgage  should  be  second. 

The  defence  set  up  by  the  answer  is,  that  the  mortgage  was 
usurious. 

The  cause  was  heard  on  the  pleadings  and  proofs. 

Leupp,  for  the   complainants,  cited    17  Johns,  Rep.  511; 

1  Green's  Ch.  R.  44;  1  P.  W.  606;   3   Green's  Rep.  328; 

2  Kent's  Com.  460,  461. 

J.  W.  Blydenburgh,  pro  seipso,  cited  8  Leigh's  Virg.  Rep. 
93 ;  3  IredelL  528  ;  6  Paige  627;  4  Peters  205. 

THE  CHANCELLOR.  This  is  not  the  case  of  a  borrower  and 
lender  residing  in  New  Jersey,  making  a  contract  for  the  loan 
of  money,  and  going  into  New  York  to  exchange  the  papers, 
and  reserving  seven  per  cent,  interest.  All  the  parties  to  this 
contract  resided  in  New  York  at  the  time  it  was  made.  The 
bond  and  mortgage  both  truly  state  the  parties,  obligor  and 
obligees,  and  mortgagor  and  mortgagees,  as  of  the  city  of  New 
York.  The  papers  were  executed  in  New  York ;  the  mortgage 
is  acknowledged  in  New  York.  It  is  clearly  a  New  York 
transaction. 

A,  residing  in  New  York,  lends  B,  also  residing  in  New 
York,  a  earn  of  money,  and  takes  his  bond  for  it,  payable 
in  one  year,  at  New  York  interest,  seven  per  cent.  To  secure 
the  bond,  the  borrower  gives  the  lender  a  mortgage  on  lands  in 
New  Jersey.  It  would  be  a  singular  application  of  the  lex  loci 


JUNE  TERM,  1845.  19 

Cotheal  v.  BIydenburgh. 

rei  sitce,  to  say  that,  because  this  New  York  contract  is  secured 
by  a  mortgage  on  lands  in  New  Jersey,  where  the  legal  interest 
is  six  per  cent,  only,  it  is  void  for  usury,  or  even  to  say  that  the 
lender  shall  receive  only  New  Jersey  interest.  3  Alk.  727, 
Stapleton  v.  Conway. 

Another  ground  relied  on  by  the  defendant  was,  that  the 
bond  and  mortgage,  though  executed,  witnessed,  and  acknowl- 
edged iu  New  York,  were  actually  delivered  at  the  clerk's  office 
in  New  Brunswick,  New  Jersey,  and  not  in  New  York.  I  (Jo 
not  see  that  the  mere  fact  of  the  exchange  of  the  papers  in  some 
place  out  of  New  York  deprives  it  of  the  character  of  a  New 
York  contract.  But  in  this  case,  the  reason  why  it  was  done  is 
manifest.  It  was  done  by  arrangement  between  the  parties,  and 
by  the  advice  of  the  complainants'  counsel,  in  order  that  the 
complainants  might  be  sure  that  their  mortgage  found  its  right 
place  on  the  record. 

As  to  the  rate  of  interest  in  New  York,  it  is  sufficiently  proved 
in  the  case,  if  it  were  necessary  to  prove  it.  But  it  was  net 
necessary.  The  defence  is  usury,  by  the  law  of  New  Jersey. 
This  defence  cannot  be  made  in  relation  to  a  New  York  contract. 

The  defence  is  overcome  by  showing  that  this  was  a  contract 
not  subject  to  the  New  Jersey  statute.  If  the  contract  was  usu- 
rious in  New  York,  it  was  for  the  defendant  to  show  it,  iu 
pleading  and  proof. 

The  complainants  are  entitled  to  the  relief  sought  by  their 
bill.  The  usual  reference  will  be  ordered. 

Order  accordingly. 

AFFIRMED,  1  Hal.  Ch.  631. 

CITED  in  Dolman  v.  Cook,  1  McCar.  62 ;  Campion  v.  K'dle,  2  McCar.  231 ; 

Andrews  v.  Torrey,  2  McCar.  357 ;  Alwaler  v.  Walker,  1  C.  E.  Gr.  43; 

Leake  v.  Bergen,  12  C.  E.  Or.  361. 


20  CASES  IN  CHANCERY. 


Rockwell  v.  Lawrence. 


EEUBEN  EOCKWELL  AND  AZAKIAH  LEE  v.  JAMES  S.  LAW- 
KENCE  ET  AL. 

On  bill  for  the  specific  performance  of  an  alleged  agreement  for  the  sale  of 
land  to  the  complainant,  an  injunction  was  issued  to  restrain  a  subsequent 
purchaser  from  proceeding  in  an  ejectment  to  recover  possession  from  the 
complainant.  The  injunction  may  be  dissolved,  on  the  answer  of  the  defend- 
ant who  is  alleged  to  have  made  the  agreement  to  sell,  denying  the  agree- 
ment, and  the  answer  of  the  subsequent  purchaser,  denying  any  knowledge, 
information,  or  belief  of  such  alleged  agreement. 


This  bill,  filed  November  fifteenth,  eighteen  hundred  and 
forty-four,  is  a  bill  for  the  specific  performance  of  an  alleged 
contract  between  Reuben  Rockwell  and  Azariah  Lee,  the  com- 
plainants, and  James  S.  Lawrence,  for  the  sale  by  Lawrence, 
and  the  purchase  by  the  complainants,  of  a  tract  of  pine  timber 
land  in  Monmouth  county,  called  the  Greenwood  tract. 

The  bill  states  that,  on  the  twenty-third  of  September,  eighteen 
hundred  and  forty-three,  Charles  Stewart  and  his  wife  sold 
and  conveyed  this  tract,  with  others,  to  John  Read.  That,  at 
the  time  of  the  delivery  of  the  deed  from  Stewart  to  Read,  the 
said  Read,  with  the  complainant  Rockwell  under  him,  was  in 
possession  of  the  land,  under  an  agreement  for  the  purchase 
thereof  from  Stewart;  and  that,  ever  since  the  delivery  of  the 
said  deed,  Read,  and  one  of  the  complainants  under  him,  had 
continued  in  possession,  up  to  the  time  of  the  making  of  the 
contract  stated  in  the  bill.  That  Stewart  and  wife,  before  con- 
veying to  Read,  had  given  a  mortgage  to  one  McKnight  on  the 
Greenwood  tract,  for  fifteen  hundred  dollars  ;  and  that,  under 
a  decree  of  this  court  for  the  foreclosure  of  the  said  mortgage 
and  the  sale  of  the  said  tract,  it  had  been  sold  by  the  sheriff  of 
the  county  of  Monmouth  to  the  said  James  S.  Lawrence,  on  or 
about  July  the  fourth,  eighteen  hundred  and  forty-three.  The 
bill  then  sets  out  what  is  claimed  to  be  the  agreement,  the  spe- 
cific performance  of  which  is  sought  by  the  bill ;  and  states  that, 
in  pursuance  of  the  said  agreement,  the  complainants  went  into 
:  --ion  of  the  tract,  and  commenced  cutting  and  coaling  for 
the  spring  sales,  &c. 


JUNE  TERM,  1845.  21 

Rockwell  v.  Lawrence. 

It  is  not  necessary,  on  this  motion,  to  state  more  fully  the 
charges  in  the  bill  on  which  the  prayer  for  specific  performance 
is  founded. 

After  the  alleged  contract,  the  premises  were  sold  and  con- 
veyed by  the  defendant  Lawrence,  to  the  defendant  George 
Cornelius.  The  bill  alleges  that  Cornelius  had  notice  of  the 
contract.  Cornelius  had  brought  ejectment  to  recover  posses- 
sion of  the  premises,  and  the  bill  prayed  an  injunction  to 
restrain  him  from  proceeding  in  that  suit.  The  injunction  was 
granted. 

The  defendants  put  in  their  joint  and  several  answer.  They 
deny  that  any  such  agreement  as  is  set  forth  in  the  bill,  either 
in  form  or  substance,  was  ever  made,  and  deny  that  the  com- 
plainants went  into  possession  under  any  such  agreement. 
Lawrence  says  that  he  bought  the  Greenwood  tract  in  behalf 
of  himself  and  the  defendant  Wyckoff,  and  so  informed  the 
complainants,  at  the  interview  of  Februrary  first,  eighteen  hun- 
dred and  forty-four,  stated  in  the  bill — being  the  interview  at 
which  the  complainants  charge  that  an  agreement  for  the  pur- 
chase and  sale  of  the  tract  was  made. 

The  answer  states  that  the  agreement  under  which  the  de- 
fendants went  on  to  the  tract  and  commenced  cutting,  was  an 
agreement  that  they  might  go  on  the  tract,  and  cut  and  coal 
until  some  time  in  the  early  part  of  the  season,  and  take  the 
coal  to  market,  and  pay  over  one-fourth  of  the  proceeds,  as  the 
complainants  proposed  doing  in  case  they  should  buy  the  tract, 
and  that  if,  on  such  trial,  the  complainants  should  coal  and 
take  to  market  as  much  per  week  as  they  proposed,  viz.,  two 
thousand  bushels,  and  realize  twenty  cents  a  tub,  and  pay  over, 
on  the  sale  of  each  cargo,  commencing  about  April  the  first, 
thereafter,  one-fourth  of  the  price  of  the  coal,  to  Lawrence  and 
Wyckoff,  and  should  satisfy  them  that  they  would  be  able  to 
Day  for  the  tracts  in  the  manner  they  proposed,  in  case  they 
should  buy,  that  then  the  defendants  Lawrence  and  Wyckoff, 
on  being  so  satisfied,  would  enter  into  a  contract  to  sell  to  the 
complainants  the  Greenwood  tract  for  five  thousand  dollars, 
and  another  tract,  called  the  Fanago  tract,  for  three  thousand 
dollars,  but  that  if,  on  such  trial,  the  complainants  should  fail 


CASES  IN  CHANCERY. 

Rockwell  v.  Lawrence. 

>n  any  of  the  above  particulars,  or  if,  for  any  cause,  the  con- 
tract for  sale  should  not  be  entered  into,  then  the  complainants 
were  to  pay  to  Lawrence  and  Wyckoff  a  fair  compensation,  for 
the  wood  and  timber  they  should  take  away,  and  yield  up  pos- 
session of  the  premises.  And  Lawrence  says  that  the  com- 
plainants were  willing,  in  case  the  contract  for  sale  should  be 
finally  entered  into,  to  give  eight  thousand  dollars  for  the  two 
tracts,  but  were  not  willing  to  give  more  than  four  thousand 
dollars  for  the  Greenwood  tract  alone,  which  he,  Lawrence, 
refused  to  take,  and  that  they -never  came  to  any  agreement 
whether  the  Greenwood  tract  should  be  at  the  price  of  four 
thousand  or  five  thousand  dollars,  and  that  the  only  conclusion 
they  came  to  was  as  above  stated. 

The  answer  states  that  the  authority  given  to  the  complain- 
ants to  go  to  cutting  for  the  spring  sales,  was,  under  this  agree- 
ment, set  forth  in  the  answer,  and  that  the  complainants  com- 
menced cutting  under  this  agreement,  and  took  coal  to  New 
York  until  about  May  twenty-second,  eighteen  hundred  and 
forty-four,  yet  had  never  accounted  for  the  proceeds,  o'r  paid 
any  part  of  the  same,  as,  by  the  terms  of  their  agreement,  they 
were  bound  to  do.  That  they  were  not  able  to  coal  one 
thousand  tubs  a  week,  nor  had  they  taken  that  quantity  to 
New  York.  That  at  this  time  it  had  become  manifest  that  the 
complainants  could  not  comply  with  their  contract,  as  stated  in 
the  answer,  nor  with  the  contract,  if  it  had  been  as  stated  in 
the  bill. 

That  Lawrence  then  stated  to  Rockwell  that  it  was  apparent 
the  complainants  could  not  fulfill  the  contract  of  sale  if  they 
entered  into  it.  That  at  Rockwell's  request,  Lawrence  con- 
sented to  afford  the  complainants  another  trial,  to  see  whether, 
if  the  contract  of  sale  should  be  finally  entered  into,  there  was 
any  prospect  of  their  being  able  to  pay  for  the  lands,  according 
to  their  proposals,  as  stated  in  the  answer.  That  this  second 
trial  was  given  on  the  express  understanding  with  the  complain- 
ants, that  if  they  failed,  the  whole  matter,  as  far  as  the  sale  was 
concerned,  should  be  at  an  end,  and  the  complainants  should 
pay  the  fair  value  of  the  wood  and  timber  cut. 

That  the  complainants  continued  cutting  until  November, 
eighteen  hundred  and  forty-four,  when  they  were  stopped  by  a 


JUXE  TERM,  1845.  23 


Rockwell  v.  Lawrence. 


rule  of  the  Supreme  Court  to  stay  waste,  made  in  the  ejectment 
suit ;  hut  that  they  never  accounted  for  each  cargo  of  coal  as  it 
was  sold,  or  at  any  other  time,  and  never  paid  over  any  part  of 
the  proceeds,  except  as  stated  in  the  two  receipts  mentioned,  &c. 

It  is  not  necessary  to  state  more  of  the  answer  for  the  purpose 
of  disposing  of  the  present  motion. 

On  this  answer  the  defendants,  by  their  counsel,  moved  to 
dissolve  the  injunction. 

W.  L.  Dayton,  in  support  of  the  motion. 
Ryall  and  P.  D.  Vroom,  contra. 

Cases  cited  against  the  motion,  2  John.  Ch.  E.  202,  148 ;  3 
Ib.  345 ;  1  Green's  Ch.  R.  40,  438. 

THE  CHANCELLOR.  As  to  the  question  of  notice  to  Cor 
nelius,"  there  is  no  difficulty  in  the  case.  If,  as  between  the 
complainants  and  Lawrence,  there  was  a  contract  of  sale  and 
purchase,  there  is  enough  in  the  bill  and  answer  to  charge 
Cornelius  with  notice.  The  inquiry  is,  does  it  sufficiently  ap- 
pear from  the  bill  and  answer,  that  there  was  any  such  contract 
as  is  set  out  in  the  bill  ?  Lawrence  and  Wyckoff  positively 
and  fully  deny  it,  and  state  what  the  agreement  was, 
under  which  the  complainants  went  to  cutting.  But  it  is  said 
by  the  counsel  for  the  complainants  that,  as  the  injunction  is 
against  Cornelius  alone,  it  must  stand  or  fall  by  his  answer, 
and  that  he  cannot  call  to  his  aid  the  answer  of  the  other 
defendants ;  that,  if  he  has  no  knowledge  of  the  facts,  and 
cannot  deny  the  charges  of  the  bill,  the  injunction  must  stand. 
This  ground  cannot  be  maintained.  It  is  a  bill  for  the  specific 
performance  of  an  alleged  agreement  between  the  complainants 
and  Lawrence.  The  injunction  against  Cornelius,  the  subse- 
quent purchaser  from  Lawrence,  is  only  auxiliary  to  the  relief 
sought  by  the  bill.  Lawrence  denies  the  equity  of  the  bill,  and 
the  facts  from  which  it  is  supposed  to  arise;  and  Cornelius  de- 
nies any  knowledge,  information,  or  belief  of  the  alleged  agree- 
meut.  Should  the  injunction  be  retained  because  the  subse- 


24  CASES    IN  CHANCERY. 

Westcott  v.  Gi fiord. 

quent  purchaser,  knowing  nothing  of  the  facts,  can  neither  admit 
nor  deny  them  ?     I  think  not.     The  injunction  will  be  dissolved. 

Order  accordingly 


WILLIAM  WESTCOTT  v.  GIFFORD  AND  COSSABOOM. 

If,  on  examining  the  complainant's  claim  of  title  to  timber  land,  from  which 
the  defendant  has  been  restrained  from  cutting  timber,  the  court  is  clearly 
satisfied  that  the  complainant  has  no  title,  the  injunction  will  not  be  retained, 
though  an  action  of  trespass  for  cutting  be  pending  at  law,  but  will  be  dis- 
solved. 

On  the  thirty-first  of  July,  eighteen  hundred  and  forty-four, 
William  Westcott,  with  other  complainants,  exhibited  his  bill, 
setting  up  title  to  a  tract  of  cedar  swamp  in  Egg  Harbor.  West- 
cott claimed  as  heir-at-law  of  his  father,  Blazier  Westcott;  de- 
ducing his  title  from  surveys  made  in  August,  seventeen  hundred 
and  thirty-nine,  and  February,  seventeen  hundred  and  forty-one. 
The  bill  stated  that  the  defendants  were  cutting  timber  on  the 
premises,  and  were  irresponsible,  and  that  an  action  of  trespass 
for  the  cutting  had  been  brought  in  the  Supreme  Court,  and 
prayed  an  injunction. 

Injunction  was  granted  on  the  ninth  of  August,  eighteen 
hundred  and  forty-four. 

The  defendants  presented  their  petition  to  the  court,  stating 
that  they  and  those  under  whom  they  claim,  had  been  in  pos- 
session of  the  premises  for  nearly  a  century,  and  that  the  com- 
plainants were  engaged  in  cutting  timber  on  the  premises,  and 
were  insolvent,  and  praying  that  the  complainants  might  be  en- 
joined from  cutting.  This  injunction  was  also  granted. 

On  the  twenty-eighth  of  August,  eighteen  hundred  and  forty- 
four,  the  defendants  put  in  their  answer  to  the  bill ;  and  the 
injunction  obtained  by  the  complainants  was  dissolved  in  Octo- 
ber, eighteen  hundred  and  forty-four. 

In  November,  eighteen  hundred  and  forty-four,  Westcott 
filed  a  new  bill,  stating  that,  since  the  filing  of  the  first  bill,  Le 


JUNE  TERM,  1845.  25 

Westcott  v.  Gifford. 

had  discovered  that  his  father  had  no  title  to  the  premises,  and 
setting  up  a  title  under  George  West,  deducing  title  to  George 
West,  from  ancient  surveys.  On  this  bill,  an  injunction  was 
granted  November  twelfth,  eighteen  hundred  and  forty-four,  so 
that  both  parties  were  again  enjoined  from  cutting. 

To  this  bill,  an  answer  was  put  in,  and  the  parties  were  heard 
on  cross-motions,  each  party  moving  to  dissolve  the  injunction 
obtained  by  the  other. 

Sloan  and  Browning,  for  the  complainant. 
W.  Potts  and  Jejfcrs,  for  the  defendants. 

The  Chancellor,  after  an  elaborate  examination  of  the  title 
deeds  exhibited,  which  it  would  be  unprofitable  to  report,  said 
he  was  satisfied  there  was  nothing  in  the  show  of  title  made  by 
the  complainant;  that  his  own  exhibits  disproved  his  title,  and 
that  the  injunction  obtained  by  the  complainant  would,  there- 
fore, be  dissolved,  notwithstanding  the  pendency  of  his  action 
at  law  for  the  cutting. 

The'  injunction  obtained  by  the  complainant  was  dissolved, 
and  that  obtained  by  the  defendants  was  retained. 

It  was  said  by  the  Chancellor,  in  this  case,  that  an  order  may 
be  obtained  to  prove  deeds,  viva  voce,  at  the  hearing,  saving  all 
just  exceptions,  and  that,  on  due  service  of  a  copy  of  such  order, 
such  proof  may  be  made  at  the  hearing;  that  a  deed  which 
requires  nothing  more  than  proof  of  handwriting,  may  be  so 
proved.  1  Smith's  Oh.  Pr.  44. 

VOL.  i.  B 


26  CASES  IN  CHANCERY. 


Kimball  v.  Morton. 


HAKRISON  KIMBALL  AND  WILLIAM  A.  DOLE  v.  PETER 
MORTON  ET  AL. 

1.  Courts  of  equity  will  not,  in  general,  decree  performance  of  contracts  for 
the  sale  of  personal  property,  but  will  decree  the  execution  of  trusts  of  per- 
sonalty. 

2.  Stock  in  a  bank  had  been  transferred  to  the  defendant,  to  be  by  him 
transferred  in  different  portions,  one  portion  of  which  was  to  be  transferred 
to  the  complainants.     A  transfer  decreed. 

3.  The  statute  of  frauds,  requiring  declarations  of  trust  to  be  in  writing, 
does  not  extend  to  trusts  of  personalty. 


The  bill  states  that  Charles  Collins,  being  indebted  to  the 
complainants,  Harrison  Kimball  and  William  A.  Dole,  did,  oa 
the  thirtieth  of  September,  eighteen  hundred  and  forty-one,  by 
writing  under  seal,  execute  to  one  Chase,  agent  of  the  com- 
plainants, an  assignment  of  three  hundred  and  eighty-eight 
shares  of  the  stock  of  the  People's  Bank  of  Paterson,  standing 
in  his  name  on  the  books  of  the  bank,  as  collateral  security  for 
the  payment  of  certain  notes  held  by  the  complainants  against 
him,  and  in  trust,  after  paying  said  notes  and  all  expenses,  to 
pay  over  the  surplus  to  him,  Collins,  or  his  assigns,  empower- 
ing the  complainants  to  ask  and  receive  transfers  of  the  stock 
to  them,  and  to  make  transfers  thereof,  or  any  part  thereof,  to 
themselves  or  any  other  persons,  and  to  sell  the  stock,  or  any 
part  of  it,  at  not  less  than  seventy-five  cents  to  the  dollar,  re- 
voking all  former  powers  of  attorney  given  in  reference  to  this 
stock.  That  the  defendant  Peter  Morton  then  held  a  power 
of  attorney,  before  then  executed  by  Collins,  authorizing  him 
to  sell  and  transfer  the  stock.  That  Morton  claimed  to  have 
received  and  to  hold  the  power  of  attorney  to  him,  as  security 
for  money  alleged  to  be  due  him  from  Collins.  That  before 
that  time,  an  attachment  had  been  issued  in  New  Jersey  against 
Collins,  at  the  suit  of  Perkins,  Hopkins,  and  White,  on  which 
the  stock  was  attached,  and  was  then  pending  undetermined. 
That,  for  the  purpose  of  settling  the  claims  and  rights  of  the 
parties  to  the  stock,  and  adjusting  their  respective  interests  in 
it,  it  was  agreed,  by  and  between  Collins,  Morton,  Perkins, 


JUNE  TERM,  1845.  27 


Kimball  v.  Morton. 


Hopkins  and  White,  and  the  complainants'  said  agent,  that 
three  hundred  and  seventy-eight  shares  should  be  transferred  to 
Morton,  and  that  he  should  retain  to  himself,  in  satisfaction  of 
his  demand  against  Collins,  two  hundred  and  fifty  shares  there- 
of, and  should  immediately  assign  to  Perkins,  Hopkins  and 
White  forty-eight  shares  thereof,  and  to  the  complainants'  said 
agent  the  remaining  eighty  shares  thereof.  That  in  pursuance 
of  this  agreement,  three  hundred  and  seventy-eight  shares  were, 
on  the  second  of  October,  eighteen  hundred  and  forty-one, 
transferred  on  the  books  of  the  bank  to  Morton,  and  that  on 
the  ninth  of  November,  eighteen  hundred  and  forty-one,  a  cer- 
tificate of  such  transfer  was  delivered  to  Morton,  for  the  pur- 
poses before  mentioned.  That  shortly  afterwards,  Chase  re- 
quested Morton  to  assign  to  him  the  eighty  shares  for  the  benefit 
of  the  complainants,  in  pursuance  of  the  said  agreement;  but 
that  Morton  refused,  alleging  that  there  were  attachments  in 
New  York  against  Collins,  and  that  he,  Morton,  might  make 
himself  liable. 

The  bill  charges  that  no  attachment  had  been  issued  in  New 
York,  except  one  in  which  Morton  was  plaintiff;  and  submits 
that  such  attachment  in  New  York  constitutes  no  lien  on  the 
stock,  and  did  not  hinder  Morton  from  complying  with  the  said 
agreement. 

The  bill  states  that  the  defendant  Edward  Filly,  after  the 
making  of  the  said  agreement,  and  before  the  term  of  Febru- 
ary, eighteen  hundred  and  forty-two,  of  the  Passaic  Circuit 
Court,  caused  an  attachment  to  be  issued  out  of  said  court,  in 
his  name,  against  Collins,  by  virtue  of  which  three  hun- 
dred and  thirty  shares  of  the  said  stoc"k,  standing  on  the  books 
of  the  bank  in  the  name  of  Morton,  were  attached  as  the  pro- 
perty of  Collins.  That  these  three  hundred  and  thirty  shares 
included  the  eighty  shares  so  agreed  to  be  transferred  by  Morton 
to  the  complainants'  agent.  That  in  July,  eighteen  hundred 
and  forty-two,  judgment  in  the  last-mentioned  attachment  was 
entered  in  favor  of  Filly,  for  thirteen  hundred  and  nine  dollars, 
and  that  the  auditors  were  ordered  to  sell  the  property  attached, 
and  did  sell  to  Filly,  for  fifty  dollars,  seventy-nine  shares  of  the 
said  stock,  the  same  being  intended  to  be,  as  the  complain- 
ants are  informed  and  believe,  seventy-nine  of  the  eighty 


28  CASES  IN  CHANCERY. 

Kiraball  v.  Morton. 

shares  so  agreed  to  be  transferred  by  Morton  to  the  complain- 
ants' agent. 

The  bill  charges  that  the  last-mentioned  attachment  was  con- 
trived by  collusion  and  fraud  between  Morton  and  Filly,  for  the 
purpose  of  defrauding  the  complainants  of  the  seventy-nine 
shares ;  that  the  note  on  which  the  attachment  was  issued  was 
furnished  by  Morton  to  Filly,  and  was  fraudulently  put  in  cir- 
culation, nothing  being  due  on  it  from  Collins.  That  Morton 
pretends  he  is  required  by  an  order  of  the  Circuit  Court  of  Pas- 
saic,  to  transfer  the  said  eighty  shares  to  Filly,  in  pursuance  of 
said  auditors'  sale,  and  has  fixed  on  the  eighth  of  October, 
eighteen  hundred  and  forty-two,  to  make  such  transfer. 

The  bill  prays  that  Morton  may  be  enjoined  from  making  the 
transfer,  and  that  the  bank  may  be  restrained  from  permitting 
it  to  be  made  ;  that  Morton  may  be  decreed  to  perform  the  said 
agreement,  and  transfer  the  said  eighty  shares  to  the  complain- 
ants or  their  said  agent,  or  that  a  transfer  may  be  decreed  to  be 
made  by  a  master,  or  by  such  person  as  the  court  shall  appoint 
for  that  purpose ;  that  the  bank  may  be  decreed  to  permit  such 
transfer  to  be  made  on  their  books ;  and  that  Morton  may  be 
decreed  to  pay  to  the  complainants  what  he  has  received  for  divi- 
dends on  the  said  eighty  shares  since  the  making  of  the  said 
agreement. 

An  injunction  was  issued,  according  to  the  prayer  of  the 
bill. 

A  decree  pro  confesso  was  made  against  Filly  and  the 
bank. 

Morton  answered  the  bill.  The  substance  of  the  answer  will 
sufficiently  appear  in  the  opinion  of  the  court.  The  cause  was 
brought  to  a  hearing  on  the  pleadings  and  proofs. 

A.  Whitehead,  for  the  complainants. 
A.  S.  Pennington,  for  the  defendants. 

Cases  cited  on  the  part  of  the  defendants:  15  Wend.  373; 
Phil.  Evid.  439;  1  P.  Wms.  570;  2  Ibid.  305;  12  Ves.,  Jr., 
321;  fStonfn  Eq.  Jur.,  §  29;  Bunb.  Rep.  135;  10  Ves.,  Jr., 
159;  13  Ibid.  37;  3  Atk.  383;  5  Vin.  Ab.  450. 


JUNE  TERM,  1845.  29 


Kimball  v.  Morton. 


THE  CHANCELLOR.  One  objection  made  on  the  argument 
to  the  granting  the  relief  sought  by  this  bill  was,  that  it  is  a 
bill  for  the  specific  performance  of  an  agreement  in  relation  to 
personalty.  From  the  view  I  have  taken  of  the  case,  it  is  not 
necessary  to  go  at  large  into  the  learning  on  this  subject; 
though  much  was  said  at  the  hearing,  on  both  sides,  in  reference 
to  the  doctrine  of  equity  as  to  the  specific  performance  of  such 
agreements.  Courts  of  equity,  will  not,  in  general,  decree  per- 
formance of  a  contract  for  the  sale  of  stock  or  goods,  inasmuch 
as  with  the  same  money,  either  not  paid,  as  in  agreements  to 
deliver  goods  on  receiving  the  price  agreed  on,  where  the  party 
agreeing  to  deliver  fails  to  do  so  on  tender  of  the  money,  or  re- 
covered in  damages  where  (he  money  has  been  paid,  the  same 
quantity  of  the  stock  or  goods  may  ordinarily  be  purchased. 
But  there  are  exceptions  to  the  rule,  and  the  Supreme  Court  of 
the  United  States  seem  inclined  to  give  relief  in  equity  by 
specific  performance  on  contracts  respecting  personalty,  to  a 
greater  extent  than  that  to  which  the  Court  of  Chancery  in  Eng- 
land has  yet  gone.  5  Wheat.  151;  1  Peter's  Rep.  305.  And 
in  10  Connecticut  Rep.  121,  specific  performance  by  transfer  of 
stock  was  decreed. 

But  the  case  made  by  this  bill,  if  established,  is  a  case  of 
trust. 

It  appears  by  the  proofs  that  the  three  hundred  and  seventy- 
eight  shares  were  transferred  to  Morton  in  pursuance  of  a  writ- 
ten agreement,  made  and  entered  into  by  and  between  Collins, 
Morton,  Perkins  and  Company,  and  the  People's  Bank  at  Pat- 
erson,  under  their  seals,  dated  October  21st,  1841.  This 
agreement  recites  that  the  parties  are  variously  interested  in 
and  have  claims  upon  certain  three  hundred  and  eighty-eight 
shares  of  the  stock  of  the  said  bank,  standing  in  the  name  of 
Collins;  that  Perkins  and  Company  had  attached  the  interest 
of  Collins;  that  Bigelow,  Canfield  and  Company  had  also  at- 
tached the  same,  and  had  afterwards  assigned  their  interest  to 
Morton;  (these  attachments  were  in  this  state;)  that  a  mutual 
agreement  had  been  made  between  all  the  parties,  for  the  final 
settlement  of  the  whole  matter;  that  the  bank,  with  the  assent 
of  Collins,  should  hold  the  stock  until  after  the  settlement  of  a 
suit  in  New  York  between  this  bank  and  a  certain  bank  iu 


30  CASES  IN  CHANCERY. 

Kimball  v.  Morton. 

New  York.  It  is  then,  by  the  said  written  agreement,  consented 
and  agreed  that  a  provisional  transfer  of  three  hundred  and 
seventy  shares  of  the  stock  be  made  to  Morton  ;  that  the  certifi- 
cate for  the  said  stock  remain  in  escrow  in  the  hands  of  L.  B. 
Woodruff,  esquire;  that  so  soon  as  the  settlement  with  the 
New  York  bank  is  carried  out,  the  transfer  to  Morton  shall  take 
effect  and  the  certificate  be  delivered  to  him  ;  that  thereupon  all 
dividends  in  arrear  on  the  stock  should  be  paid  to  Morton ;  the 
residue  of  the  three  hundred  and  eighty-eight  shares,  being 
ten  shares,  to  be  transferred  to  the  said  People's  Bank,  and 
that  on  the  execution  of  the  said  agreement,  the  rights,  interest 
and  claims  of  the  parties  thereto  to  the  stock,  should  be  d-eerned 
definitively  agreed  and  settled,  and  that  all  claims  and  de- 
mands on  each  other  in  relation  to  the  said  stock,  except  such 
as  are  created  by  or  arise  under  the  said  agreement,  should 
cease. 

Under  this  agreement,  the  three  hundred  and  seventy-eight 
shares  were,  on  the  day  of  the  date  of  the  agreement,  trans- 
ferred on  the  books  of  the  bank  to  Morton,  and  the  certificate 
therefor  was  delivered  to  Woodruff,  to  hold  and  deliver  pursuant 
to  the  terms  of  the  contract. 

On  the  9th  of  November,  1841,  Woodruff  delivered  the  cer- 
tificate to  Morton,  and  took  his  receipt  for  it  at  the  foot  of  the 
agreement  or  a  copy  of  it. 

There  is  nothing  in  this  agreement  binding  Morton,  after  the 
transfer  should  be  made  to  him,  to  transfer  any  of  these  shares 
to  any  person  whatever.  The  agreement  provides  only  for  the 
transfer  to  him.  It  is  not,  therefore,  by  force  of  anything  in 
the  agreement  that  the  complainants  can  succeed.  They  claim 
that  notwithstanding  the  written  agreement  is  silent  as  to  any 
transfer  by  Morton  of  any  portion  of  the  stock,  after  he  should 
receive  the  certificate  for  it,  yet  that  it  was  agreed  between  the 
parties  and  by  Morton,  that  when  Morton  should  receive  the  cer- 
tificate, he  should  transfer  forty-eight  of  the  shares  to  Perkins 
and  Company,  and  eighty  of  them  to  the  complainants,  and  re- 
tain the  remaining  two  hundred  and  fifty  shares  for  himself. 

Is  this  part  of  the  complainants'  case  established?  I  think  it 
is.  In  the  first  place,  the  terms  of  the  written  agreement  are 
opposed  to  the  idea  that  the  whole  three  hundred  and  seventy- 

* 


JUNE  TERM,  1845.  31 


Kimball  v.  Morton. 


eight  shares  were  to  be  transferred  to  Morton  for  his  own  benefit. 
It  recites  that  the  parties  thereto  are  variously  interested  in  and 
have  claims  on  the  stock,  and  states  that  it  is  consented  and 
agreed  that  a  provisional  transfer  be  made  to  Morton.  Again, 
Morton,  in  his  answer,  does  not  claim  the  benefit  of  the  written 
agreement  according  to  the  terms  of  it,  but  admits  that  he  did 
agree  to  receive  two  hundred  and  fifty-three  shares  of  the  stock, 
(I  am  satisfied  that  he  adds  the  three  shares  because  the  com- 
plainants in  their  bill  had  fallen  into  a  mistake  in  putting  the 
uumbei  Morton  was  to  have,  at  two  hundred  and  fifty-three,  in- 
stead of  two  hundred  and  fifty,)  for  the  indebtedness  of  Collins 
to  him,  and  to  transfer  ten  shares  to  the  bank,  and  forty-eight 
shares  to  Perkins  and  Company,  and  admits  that  it  was  agreed 
between  all  the  parties,  that  when  Collins  should  pay  the  costs 
of  the  attachment  in  New  York  at  the  suit  of  him  and  his  part- 
ner Filly,  and  should  satisfy  the  creditors  who  had  come  in 
under  that  attachment,  and  repay  him  one  hundred  and  fifty 
dollars  he  had  advanced  to  Collins  to  pay  costs,  he  should  trans- 
fer to  Collins,  or  whoever  was  entitled  to  them  under  Collins, 
the  remaining  shares ;  (he  calls  them  seventy-seven,  deducting 
the  three  which  he  added,  as  before  stated,  to  the  two  hundred 
and  fifty  ;)  and  he  admits  that  the  agent  of  the  complainants 
was  present  when  the  agreement  was  made,  and  showed  him  the 
assignment  stated  in  the  bill,  to  the  said  agent  of  the  complainant. 

I  think  that  this  answer,  as  it  is  drawn,  and  in  view  of  the 
nature  of  the  transaction  and  the  circumstances  attending  it, 
should  be  considered  a  sufficient  admission  of  the  trust.  If  the 
answer  could  be  considered  as  making  a  distinct  allegation  that 
such  conditions  were  agreed  upon  as  to  the  eighty  shares,  still  it 
admits  a  trust  as  to  these  shares  ;  ami  I  think  parol  evidence  is 
admissible  to  show  the  terms  of  the  trust,  and  to  contradict  his 
allegations  as  to  conditions. 

It  was  objected  that  the  statute  of  frauds  requires  all  declara- 
tions or  creations  of  trust  to  be  in  writing. 

The  statute  does  not  extend  to  trusts  of  personalty.  2  Stoi-y, 
§972.  Three  witnesses,  on  the  part  of'  the  complainants,  tes- 
tify that  the  agreement  of  Morton  to  transfer  the  eighty  shares 
to  Collins  or  his  assignees,  was  without  any  condition  whatever. 


32  CASES  IN  CHANCERY. 

Rogers  v.  Rogers. 

The  attachment  at  the  suit  of  Filly  was  not  till  after  the  assign- 
ment by  Collins  to  Morton  for  the  purposes  of  the  agreement. 

I  am  of  opinion  that  the  complainants  are  entitled  to  relief. 
A  transfer  of  the  eighty  shares  will  be  decreed. 

Decree  accordingly. 

CITED  in  Hooper  v.  Holmes,  3  Stock.  124. 


ANNA  EOGERS  AND  ELTON  ROGERS,  EXECUTORS  OF,  AND 
TRUSTEES  UNDER  THE  WILL  OP  WILLIAM  ROGERS,  DE- 
CEASED, v.  WILLIAM  ROGERS,  SIMEON  WARRINGTON 
ETAL. 

1.  A  and  B  held  a  mortgage  given  to  them  as  trustees,  on  the  undivided 
half  of  a  mill  seat.     B,  in  his  own  right,  held  a  subsequent  mortgage  on  the 
same  half.     On  proceedings  for  partition  between  the  owners  of  the  mill  seat, 
it  was  ordered  to  be  sold  at  auction,  and  was  so  sold  by  the  commissioners. 
The  order  for  sale  and  the  conditions  of  sale  were  silent  as  to  whether  the 
property  was  to  be  sold  subject  to  or  free  from  encumbrance.     Held,  that 
parol  proof  was  admissible  to  show  that  B  was  present  at  the  sale,  and  agreed 
that  the  property  should  be  sold  free  from  encumbrance,  and  received  from 
the  commissioners  the  mortgagor's  half  of  the  proceeds  of  the  sale,  knowing 
that  the  purchaser  paid  the  money  understanding  that  the  property  was  sold 
free  from  encumbrance,  and  that  the  mortgages  were  to  be  canceled. 

2.  B  applied  a  part  of  the  money  he  received  to  the  payment  of  his,  the 
junior  mortgage,  in  full,  and  the  residue  of  it  towards  paying  the  mortgage 
to  the  trustees,  thus  leaving  a  balance  due  on  that  mortgage.     The  half  of  the 
proceeds  of  sale  received  by  B  was  sufficient  to  pay  the  mortgage  to  the 
trustees,  and   part  of  the  mortgage  held  by  B  in  his  own  right.    Held,  that 
the  mortgage  to  the  trustees  was  satisfied. 


William  Rogers  gave  a  mortgage  to  Anna  Rogers  and  Elton 
Rogers,  executors  of,  and  trustees  under  the  will  of  William 
Rogers,  deceased,  dated  in  1824,  on  the  undivided  half  of  a 
mill  seat;  the  other  undivided  half  being  owned  by  John  War- 
rington.  In  February,  1830,  the  said  mortgagor  gave  another 
mortgage  on  his  undivided  half  to  Elton  Rogers,  in  his  own 
right.  Commissioners  were  appointed  to  divide  (he  property 
between  the  owners,  the  said  mortgagor,  and  John  Warrington. 
The  property  being  incapable  of  division,  it  was  ordered  to  be 


JUNE  TERM,  1845.  33 

Rogers  v.  Rogers. 

sold  by  the  commissioners  at  public  sale,  and  was  sold  accord- 
ingly, July  24th,  1830,  to  Jacob  Haines,  for  $2055,  and  was 
conveyed  by  the  commissioners  to  him.  In  September,  1830, 
Haines  conveyed  the  property  to  the  defendant,  Simeon  War- 
rington,  for  the  same  sum  at  which  it  was  struck  off  to  him  at 
the  commissioners'  sale.  In  November,  1833,  Simeon  War- 
rington  mortgaged  the  property  to  Isaac  He wl ings  for  $1500. 

The  bill  charges  that,  notwithstanding  the  said  commission- 
ers' sale,  the  mortgagor's  undivided  half  of  the  property  re- 
mained subject  to  the  first  mortgage — the  mortgage  given  to  the 
complainants,  the  executors  and  trustees  aforesaid  ;  and  further 
charges  that,  on  the  9th  of  March,  1831,  Elton  Rogers,  as  the 
agent  of  the  mortgagor,  and  not  in  his  own  right,  or  as  execu- 
tor or  trustee  as  aforesaid,  received  in  behalf  of  the  mortgagor, 
from  the  commissioners,  the  equal  half  of  the  proceeds  of  the 
commissioners'  sale;  that  Anna  Rogers  did  not,  in  any  way, 
participate  in  or  meddle  with  the  said  receipt,  but  that  the 
same  was  the  act  of  Elton,  acting  as  the  agent  solely  on  behalf 
of  the  mortgagor;  and  that,  by  the  direction  of  the  mortgagor, 
he,  Elton,  applied  the  said  money,  first  to  the  payment  of 
what  was  due  to  him  on  his,  the  junior  mortgage,  and  the 
balance  towards  paying  the  mortgage  to  the  complainants;  and 
that  a  balance  remains  due  on  the  mortgage  of  the  complain- 
ants. 

Simeon  Warrington  answers  the  bill.  The  answer  states 
that,  at  the  time  of  the  commissioners'  sale,  the  premises  were 
first  set  up  subject  to  the  mortgages,  but  that  no  bid  whatever 
could  be  obtained  therefor.  That  Elton  Rogers  then  proposed 
that  the  premises  should  be  sold  free  from  the  encumbrances, 
and  declared  publicly  that  on  the  payment  of  the  money  bid  for 
the  premises,  he  would  deliver  up  the  mortgages  to  be  canceled. 
That  the  commissioners  did  thereupon,  in  his  presence,  and 
with  his  knowledge  and  consent,  and  at  his  request,  sell  the 
premises  at  public  outcry,  clear  of  all  encumbrances,  expressly 
making  known,  in  the  presence  of  Elton,  previous  to  the  sale, 
that  the  premises  would  be  so  sold;  and  that  Elton  was  a 
competitor  at  the  sale,  and  bid  for  the  premises  $2050.  That 
said  Haines  bidding  five  dollars  more,  the  premises  were  struck 


34  CASES  IN  CHANCERY. 

Rogers  v.  Rogers. 

off  and  sold  to  him  for  $2055,  clear  of  all  encumbrances.  That 
he,  Simeon  Warrington,  before  the  delivery  of  the  deed  to  Haines, 
agreed  to  take  the  premises  and  become  the  paymaster.  That 
the  purchase  money  for  William  Rogers'  half  was  given  to 
Hulme,  one  of  the  commissioners,  to  be  paid  when  the  mortga- 
ges should  be  given  up  to  be  canceled.  That  the  net  proceeds 
of  the  commissioners'  sale  amounted  to  $1927.32,  and  that,  by 
an  order  of  the  Supreme  Court,  of  February  Term,  1831,  the 
commissioners  were  directed  to  pay  the  one-half  thereof  to 
William  Rogers,  the  mortgagor,  and  the  other  half  to  John 
Warrington,  the  other  tenant  in  common.  That  on  the  9th  of 
March,  1831,  the  one-half  so  directed  to  be  paid  to  William 
Rogers,  was,  by  the  commissioner  Hulme,  paid  to  Elton  Rogers, 
That  the  mortgages  were  then  in  the  hands  of  Wills,  another  of 
the  commissioners,  and  that  the  money  was  so  paid,  on  the  ex- 
press understanding  that  the  mortgages  had  been  delivered  up 
by  Elton  to  the  commissioners,  to  be  canceled. 

He  admits  that  the  receipt  given  by  Elton  to  the  commission- 
ers for  the  said  money,  was  signed  by  Elton  as  agent  for  Wil- 
liam Rogers,  the  mortgagor,  the  said  money  having  been  ordered 
by  the  court  to  be  paid  to  the  said  William,  and  says  that  Elton 
acted  as  the  agent  of  William,  and  had  the  management  of  his 
business  affairs. 

The  testimony  in  the  cause  is  as  follows: 

George  Hulme,  sworn  for  defendant,  says  he  was  one  of  the 
said  commissioners  ;  Daniel  Wills  and  Joseph  Saunders  were 
the  other  commissioners  ;  the  commissioners  reported  that  the 
property  could  not  be  divided,  and  it  was  ordered  to  be  sold  ;  it 
was  sold  on  the  premises,  July  24th,  1830;  Exhibit  No.  1  on 
the  part  of  the  defendant,  is  one  of  the  advertisements  of  sale ; 
Saunders,  one  of  the  commissioners,  was  absent ;  the  pro- 
perty was  first  put  up  for  sale,  subject  to  the  encumbrances ; 
the  crier  dwelt  on  it  some  time,  but  could  not  get  one  bid — not 
a  cent;  the  parties  who  held  the  encumbrances,  he  believes, 
were  present ;  he  knew  Elton  Rogers  ;  the  others  he  did  not 
know ;  they  got  together ;  they  informed  Wills  and  him 
thai  they  had  concluded  to  sell  it  clear  of  encumbrances; 


JUNE  TERM,  1845.  35 

Kogers  v.  Kogers. 

proclamation  was  then  made  that  the  property  would  be  sold 
clear  of  encumbrances ;  it  was  made  public,  to  let  everybody 
know  that  was  there;  it  was  set  up  again,  and  bid  for;  when 
something  like  two  thousand  dollars  was  bid,  he  saw  that  the 
thing  seemed  to  be  like  winding  up;  he  then  took  Elton  aside, 
and  said  to  him,  "Now  that  we  are  selling  the  property  clear  of 
encumbrances,  you  must  bid  till  you  are  satisfied;"  he  returned 
to  the  crier,  and  did  bid  ;  after  that,  Jacob  Haines  bid  ;  it  dwelt 
on  his  bid  some  time;  we  could  get  no  further  bid,  though  it 
was  rather  low;  the  commissioners  wanted  to  get  more;  they 
then  consulted  Elton  Rogers  and  John  Warrington,  as  to 
whether  it  should  then  be  cried  off,  or  the  sale  adjourned  ;  they 
did  not  get  the  answer  direct  from  them  ;  Warrington  said  he 
would  leave  it  all  to  Elton;  he  said  this  more  than  once;  it 
was  then  cried  off;  it  was  agreed-  by  both  of  them,  as  he 
understood,  that  it  should  be  cried  off;  he  was  express  in  it, 
because  he  did  not  want  it  cried  off  unless  they  were  both  satis- 
fied ;  it  was  distinctly  understood  that  it  was  to  be  sold  clear  of 
all  encumbrances;  they  could  not  get  a  bid  until  it  was  so;  it 
was  struck  off  to  Jacob  Haines  for  two  thousand  and  fifty-five  dol- 
lars. Exhibit  No.  2  on  the  part  of  the  defendant,  being  shown  to 
witness,  he  says  it  is  the  deed  from  the  commissioners  to  Haines; 
lie  cannot  be  positive  when  or  where  the  deed  to  Haines  was 
delivered;  the  whole  of  the  purchase  money  was  placed  in  his 
hands;  he  cannot  tell  how  they  got  together,  but  the  parties 
were  at  Mr.  Wills'  office,  and  word  was  sent  to  the  witness  to 
come  up  there ;  witness  went  up  therewith  the  money  in  his 
pocket;  thinks  Warrington  was  there;  he  knows  Elton  Rogers 
was  there,  and  some  other  persons  concerned  in  the  business,  but 
who,  he  cannot  say ;  when  he  went  into  the  office,  he  asked 
Mr.  Wills,  his  colleague,  who  was  the  scrivener  in  all  this  busi- 
ness, if  all  the  papers  relating  to  the  encumbrances  were  there; 
he  said  yes — holding  up  the  papers  in  each  hand — here  they 
all  are ;  he,  witness,  did  not  read  the  papers ;  witness  then 
considered  it  all  .straight,  and  pulled  out  the  money  and  counted 
it  down  to  Mr.  Wills;  Elton  Rogers  was  present;  as  he  got 
near  the  door,  about  leaving  the  office,  Mr.  Wills  or  Elton,  one 
of  them — witness  thinks  it  was  Wills — said  that  Elton  wanted 
the  mortgages  for  Mr.  Brown,  the  surrogate,  to  make  a  cal- 


36  CASES  IN  CHANCERY. 

Rogers  v.  Rogers. 

culation  of  the  loss  that  would  be  on  them;  witness  believes 
he  signified  that  he  had  no  objection  to  Elton's  having  them  for 
that  purpose;  witness  left  them  with  Mr.  Wills  ;  he  did  not 
know  they  were  to  go  out  of  Wills'  hands;  he  learned  after- 
wards, from  Wills,  that  the  papers  were  in  Brown's  hands;  wit- 
ness went,  two  or  three  times,  to  Brown's  for  the  mortgages,  by 
himself;  he  felt  uneasy  about  the  situation  of  things;  Brown 
did  not  give  them  to  him  ;  witness  urged  it,  and  claimed  the 
papers,  as  one  of  the  commissioners,  and  insisted  on  having 
them,  as  the  commissioners'  papers,  and  that  no  one  else  had 
any  right  to  them ;  when  Brown  found  that  witness  was 
determined  to  have  them,  he  said  he  could  not  give  them  to 
witness  unless  the  parties  were  all  present;  Wills,  Elton,  and  he 
got  together,  at  Brown's  office;  both  Wills  and  witness  claimed 
the  papers  as  theirs;  Elton  did  not  agree  to  let  them  have  them; 
he  wanted,  as  witness  understood,  to  collect  the  balance  on 
them  ;  he  left,  and  did  not  get  the  papers;  the  claim  of  Elton 
struck  witness  as  very  wrong,  because  it  was  so  expressly  under- 
stood, at  the  sale,  that  the  property  was  sold  clear  of  encum- 
brance; witness  paid  over  the  money,  on  the  express  under- 
standing that  the  mortgages  were  to  be  given  up;  he  would 
not  have  paid  over  a  cent,  if  they  had  not  been  to  be  given  up ; 
the  purchase  money  was  placed  in  his  hands  on  that  under- 
standing ;  he  understood  Elton  Rogers  and  John  Warrington 
were  the  parties  interested;  Elton  represented  William  Rogers, 
and  signed  his  name  as  agent,  witness  thinks,  in  the  receipt  he 
gave  the  commissioners. 

Being  cross-examined,  this  witness  says — Exhibit  G  on  the 
part  of  the  complainants,  is  the  receipt  spoken  of;  Elton  acted, 
throughout,  as  agent  for  William  ;  Exhibit  F  on  the  part  of  the 
complainants,  contains  the  conditions  of  sale;  that  is  what 
we  sold  by  ;  the  bonds  and  mortgages  were  never  given  up  to 
him  ;  witness  paid  the  money  to  Wills,  and  he  took  the  said 
receipt,  marked  G;  witness  did  not  get  the  receipt  at  the  time; 
Elton,  at  the  sale,  agreed  that  the  mortgages  should  be  given 
up  (o  the  commissioners;  witness  does  not  know  that  this 
promise  was  made  in  writing;  Elton  agreed  to  give  them  up, 
on  conditicn  that  William's  share  of  the  purchase  money,  what- 
ever the  property  brought,  should  be  paid  over  to  him,  Elton; 


JUNE  TERM,  1845.  37 

Kogers  v.  Rogers. 

witness  always  understood  him  to  be  acting  as  the  agent  of 
William;  neither  of  the  parties  required  an  adjournment  of  the 
sale;  witness  asked  them  both;  the  commissioners  sold  the 
property  without  encumbrance,  by  the  authority  of  the  parties, 
Elton  acting  as  agent  of  William;  the  encumbrances  were  not 
given  up  to  witness,  but  when  he  paid  the  money  to  Wills  he 
understood  that  the  mortgages  had  been  given  up  to  Wills,  as 
one  of  the  commissioners,  before  witness  paid  over  the  money 
to  him;  he  understood  this  from  Wills' answer  to  his  inquiry, 
in  Elton's  presence ;  witness  paid  the  whole  of  the  money  to 
Wills. 

Re-examined  on  the  part  of  defendant,  he  says — he  does  not 
think  he  was  aware,  at  the  sale,  who  held  the  encumbrance. 

Jacob  Haiues  and  Samuel  Wilkins,  sworn  on  the  part  of  the 
defendant,  fully  confirm  the  statements  of  Mr.  Hulme. 

Daniel  Wills,  called  by  complainants,  on  his  cross-examina- 
tion, confirms  the  same  facts.  He  was  not  questioned  on  this 
subject  on  the  part  of  the  complainants. 

Joshua  Matlock,  called  on  the  part  of  the  complainants, 
swears  he  was  present  at  the  sale;  the  conditions  of  sale  were 
read  by  Mr.  Wills  ;  they  were  written  ;  near  the  end  of  the 
sale  he  found  Elton  was  bidding,  and  some  others;  Haines 
asked  Wills  about  the  encumbrances ;  Wills  then  asked  Elton 
concerning  it;  Elton  said  that  when  he  got  his  money,  for  all 
he  knew,  the  property  would  be  clear;  this  was  while  the 
bidding  was  going  on ;  he  did  not  hear  Elton  agree  to  give  up 
his  claim  on  the  property  without  receiving  his  money  ;  he  went 
with  Elton  to  the  sale  and  returned  with  him ;  on  their  way 
home  Haiues  stopped  them  and  asked  Elton  what  was  the 
amount  of  the  mortgages  on  the  property;  Elton  told  him; 
Haiues  said  he  had  money  enough  coming  in,  but  if  he  should 
not  happen  to  get  it  all  by  the  time  specified  in  the  conditions 
for  payment,  if  he,  Elton,  would  wait  until  fall  or  spring,  he 
would  pay  him  all  up;  Elton  replied  very  well,  or  something 
to  that  import;  he,  witness,  is  a  brother-in-law  of  Elton,  and 
is  a  little  hard  of  hearing ;  Haines  did  not  in  that  conversation 
mention  the  amount  he  would  pay. 

John  Warrington,  called  for  complainants,  says — Stacy  Mar- 
tin, before  the  sale,  gave  him  a  note  for  one  hundred  dollars, 


38  CASES  IN  CHANCERY. 

Rogers  v.  Rogers. 

conditionally,  that  if  his  father-in-law,  Jacob  Haines,  bought 
the  mill,  and  he,  Stacy,  got  there  to  live,  he  would  pay  it ; 
the  one-half  was  sold  at  $1200,  but  he  gave  way  and  let 
it  go  for  less;  he  gave  the  note  back  after  the  sale;  he  did  not 
bid  at  the  sale;  he  did  not  consider  himself  bound  not  to  bid  ; 
Jacob  Haines  did  not  know  about  the  note,  but  Elton  Rogers 
did ;  he  gave  up  the  note  without  any  consideration,  after 
Haines  had  agreed  to  let  Simeon  have  the  mill;  Stacy  gave 
me  the  note  because  his  father-in-law  was  a  little  afraid  of 
giving  him  the  price,  and  he  was  willing  to  help  out  a  little, 
rather  than  not  have  the  mill;  Haines  did  not  give,  witness 
thinks,  quite  as  much  as  he,  witness,  expected  ;  he  had  told 
Haines,  he  thinks,  that  he  was  willing  to  take  $1200 ;  witness 
is  the  father  of  Simeon;  Simeon  borrowed  the  money  to  pay 
for  the  property ;  witness  was  his  security  on  the  bond  to  Dr. 
Spencer,  of  whom  it  was  borrowed ;  witness  paid  the  money 
to  Mr.  Hulrae  for  Simeon;  he  paid  it  to  Mr.  Hulme,  to  pay 
over  to  Elton,  when  the  commissioners  got  the  mortgages  into 
their  own  hands,  and  not  before,  and  he,  Mr.  Hulme,  promised 
to  do  it;  at  the  commissioners'  sale,  after  they  found  the  prop- 
erty would  not  sell  with  the  encumbrances  on,  they  put  it  up 
free  of  encumbrances. 

Nathan  Warrington,  called  for  complainants,  says  he  was 
at  the  sale;  there  were  written  conditions;  Mr.  Wills  read 
the  conditions,  and  then  made  proclamation  that  the  premises 
were  to  be  sold  free  of  encumbrances — all  encumbrances  to 
be  given  up;  Jacob  Haines  then  asked  if  Elton  said  so ; 
Elton  then  said,  "Be  sure,  the  mortgages  would  be  given  up 
when  the  money  was  paid  ; "  Haines  and  Elton  then  bid 
it  up  to  $2050;  then  they  stopped  a  while,  and  Wills,  Hulme 
and  Elton  consulted  together,  and  after  that  Wills  said  they 
would  sell  the  property  then  ;  Haines  then  bid  five  dollars,  and 
it  was  knocked  off  to  him  ;  witness  did  not  know,  at  the  time, 
of  any  arrangement  between  John  Warrington  and  Stacy 
Martin  about  a  note ;  he  knew  there  was  an  arrangement 
about  the  sale  of  the  property,  between  Jacob  Haines  and  John 
Warrington;  Haines  was  to  make  up  to  John  $1200  for  his 
half,  let  the  property  bring  what  it  might;  witness  was  pres- 
ent when  Haiues  stopped  Elton  Rogers  and  Joshua  Matlock, 


JUNE  TERM,  1845.  39 

Rogers  v.  Rogers. 

after  the  sale ;  Haines  told  Elton,  he  thinks,  that  he  should 
not  be  able  to  pay  all  at  the  time  fixed  for  delivering  the  deed, 
but  if  he  would  wait  a  little  he  thought  he  should  be  able  to 
pay  the  remainder ;  Haines  asked  Elton  the  amount  of  the 
mortgages,  and  Elton  told  him,  but  the  amount  witness  does 
not  recollect;  he  cannot  say  he  understood  Haines  to  say  he 
would  pay  off  the  whole  of  the  mortgages.  Witness  knew  of 
the  arrangement  before  mentioned,  between  Haines  and  John 
Warrington,  before  the  commissioners'  sale,  and  mentioned  it 
to  Elton  Rogers,  that  he  might  have  a  chance  to  take  care  of 
himself.  He  mentioned  it  to  Elton  on  the  day  of  the  sale,  be- 
fore the  sale  took  place. 
The  cause  was  heard  on  the  pleadings  and  proofs. 

O.  D.  Wall,  for  the  complainants. 
H.  W.  Green,  for  the  defendants. 

THE  CHANCELLOR.  This  case,  upon  the  testimony,  is 
clearly  with  the  defendants.  The  amount  bid,  taken  in  con- 
nection with  the  fact  that  the  property  was  first  set  up  subject  to 
the  mortgages  and  no  bid  could  be  obtained,  shows  that  the  sale 
made  was  not  a  sale  subject  to  the  encumbrances.  The  amount 
bid,  and  at  which  the  property  was  struck  off,  was  the  sum 
which  the  purchaser  agreed  to  pay  for  the  whole  property. 
There  is  nothing  in  the  conditions  of  sale  opposed  to  this. 
These  conditions,  as  well  as  the  order  for  the  sale,  are  silent  as 
to  whether  the  property  was  to  be  sold  subject  to  or  free  from 
encumbrance.  It  was  said  the  commissioners  could  not  sell 
free  of  encumbrance.  The  mortgagee  could  agree  that  the 
sale  should  be  so  made,  and  that  he  would  give  up  the  mort- 
gage on  receiving  the  purchase  money.  It  was  objected,  that 
the  conditions  of  sale  were  written,  and  that  parol  evidence  to 
show  that  the  sale  was  made  clear  of  encumbrances  was  inad- 
missible. The  conditions  were  silent  as  to  how  the  property 
was  to  be  sold,  in  this  respect.  The  parol  evidence,  there- 
fore, does  not  contradict  the  written  conditions;  and  it  may 
be  said,  further,  that  it  does  not  add  to  the  conditions.  They 
provide  generally  for  the  sale  of  the  property ;  and  the  pre- 


40  CASES  IN  CHANCERY. 

Rogers  v.  Rogers. 

sumption  arising  from  the  conditions  would  be,  that  the  pro- 
perty, and  not  merely  an  equity  of  redemption,  was  to  be  sold. 

It  was  said  that  Elton  Rogers,  being  only  one  of  two  co-ex- 
ecutors and  trustees,  could  not  make  a  valid  agreement  that  the 
property  should  be  sold  clear  of  the  first  mortgage,  that  being 
given  to  both  executors  and  trustees.  He  could  agree  for  him- 
self, and  in  reference  to  his  own  mortgage,  which  was  the  junior 
mortgage;  and  the  property  brought,  and  it  was  well  under- 
stood at  and  before  the  sale,  that  it  would  bring  more  than 
enough  to  satisfy  the  first  mortgage.  It  was,  in  substance  and 
effect,  an  agreement  by  him  that  if  the  proceeds  of  the  sale  fell 
short  of  paying  his  mortgage,  after  satisfying  the  prior  one,  he 
would  immediately  give  up  his  mortgage  on  receiving  the  resi- 
due after  satisfying  the  prior  mortgage. 

It  was  said  that  the  commissioners'  deed  only  conveyed  the 
right  and  interest  of  the  mortgagor.  This,  I  apprehend,  is  a 
mistake.  The  deed  is  in  the  usual  form.  It  conveys  the  pro- 
perty, describing  it,  together  with  all,  &c.,  and  all  the  right, 
title  and  interest,  &c.  The  whole  property,  both  halves,  one- 
half  not  being  at  all  encumbered,  was  conveyed  by  the  same 
deed,  and  by  the  same  language.  No  distinction  or  difference 
of  language  was  used  in  respect  to  the  different  halves. 

The  case  is  the  same  as  if  the  whole  property  was  subject  to 
one  mortgage  only,  and  on  a  proposed  sale  of  the  property  at 
auction,  it  was  found  that  no  one  was  willing  to  bid  the  amount 
of  the  mortgage.  It  is  clear  that  the  mortgagor  could  not  sell 
without  the  mortgagee's  consent;  but  the  mortgagee  may  con- 
sent that  it  be  sold  for  what  it  will  bring,  and  that  if  it  sell  for 
less  than  the  amount  due  on  the  mortgage,  he  will  nevertheless 
receive  the  amount  bid  and  cancel  the  mortgage. 

But,  it  is  asked,  can  this  be  done  without  writing?  If  the 
sale  is  actually  made  on  such  an  agreement  without  writing, 
and  the  sum  bid  is  bid  on  these  terms,  though  it  may  be  that 
the  mortgagee  might  refuse  to  receive  the  money  and  give  up 
his  mortgage,  yet,  if  he  receives  the  purchase  money,  knowing 
that  the  purchaser  pays  it  as  for  a  clear  title,  he  cannot  be  per- 
mitted afterwards  to  set  up  his  mortgage  as  a  lien.  The  statute 
of  frauds  will  not  protect  him  in  such  a  transaction. 


JUNE  TERM,  1845.  4i 

Rogers  v.  Rogers. 

There  is  nothing  in  the  terras  of  the  written  receipt  he  gave 
that  helps  him.  On  the  contrary,  its  operation  is  against  him. 
It  says,  "  Received  from  the  commissioners  appointed  to  make 
sale  of  certain  real  estate  held  by  William  Rogers  and  John 
Warrington,  as  tenants  in  common,  963  dollars  and  66  cents, 
being  the  equal  half  of  the  sales  of  said  real  estate,  after  de- 
ducting thereout  the  taxed  bill  of  costs,  which  said  sum  was, 
by  said  court,  directed  to  be  paid  to  William  Rogers,  to  defray 
certain  mortgages  on  the  premises ;"  and  he  signs  it  as  the  agent 
of  William  Rogers. 

Now,  if  the  property  was  sold  subject  to  the  encumbrances, 
the  proceeds  of  the  sale  would  not  go  to  defr-ay  the  mortgages. 
If  that  had  been  the  case,  the  property  in  the  hands  of  the  pur- 
chaser would  have  remained  liable  for  the  amount  of  all  the 
mortgages,  and  the  proceeds  of  the  sale  would  have  been  pay- 
able, without  any  condition  or  qualification,  to  the  owner  of  the 
property. 

The  counsel  for  the  complainants  would  have  us  understand 
or  infer,  from  the  case  as  presented  by  the  proofs,  that  the  sale 
must  have  been  made  in  this  wise  :  the  property  to  be  sold  to 
the  highest  bidder ;  the  amount  bid  to  be  applied  towards  pay- 
ing the  mortgages;  and  if  it  be  not  sufficient,  then  the  property 
in  the  hands  of  the  purchaser  to  be  liable  for  the  balance. 

This  would  be  saying  to  the  bidders,  the  property  will  be  sold 
to  the  highest  bidder,  but  it  cannot  be  sold  unless  the  bid  is 
equal  to  the  amount  of  the  mortgages.  If  that  had  been  the 
understanding,  the  first  thing  to  have  been  done  would  have 
been  to  ascertain  the  precise  amount  due  on  the  mortgages;  and 
after  this  was  done,  the  first  bid  (if  anyone  was  willing  to  make 
it)  would  have  been  the  amount  of  the  mortgages,  for  what 
propriety  would  there  have  been  in  beginning  at  a  lower  bid. 
But  it  is  proved  by  every  one  of  the  witnesses  present,  that  an 
effort  was  made  to  sell  subject  to  the  mortgages,  and  not  a  bid 
could  be  had. 

Again,  as  to  the  idea  that  his  agreement  was  not  binding  on 
ills  co-trustee.  I  have  said  before,  that  the  mortgage  held  by 
the  trustees  was  the  first  mortgage,  and  there  was  enough  to 
pay  it.  There  is  something  extraordinary  in  Elton's  application 
of  the  money.  Why  did  he  not  apply  the  proceeds  first  to  the 

VOL  i.  0 


42  CASES  IN  CHANCERY. 

Rogers  v.  Rogers. 

payment  of  the  first  mortgage  ?  He  was  the  active  trustee,  and 
held  both  the  mortgages.  The  question  must  be  considered  here 
as  if  the  first  mortgage  had  been  wholly  paid  off,  and  the  deficit 
was  claimed  on  his  own  mortgage,  against  and  in  opposition  to 
his  own  agreement  at  the  sale.  Fairness  and  ingenuousness  re- 
quired him  to  pay  the  first  mortgage,  and  to  meet  the  question 
on  his  own  mortgage.  It  is  the  same  case  as  if  he  was  the  only 
mortgagee.  And  in  this  view,  the  fact  that  he  bid  himself  at 
the  sale,  is' strong,  perhaps  conclusive.  He  bid  $2050.  Did  he 
mean  to  pay  that  sum  to  the  mortgagor  ?  Did  he  bid  t'hat  sum 
over  and  above  the  mortgage? 

It  was  objected  that  there  was  a  fraud  practiced  on  Elton  at 
the  sale ;  that  there  \vas  an  arrangement  between  Haines,  the 
purchaser  at  the  sale,  and  the  owner  of  the  other  half,  that 
Haines  was  to  make  up  to  him  $1200  for  his  half,  let  the  pro- 
perty bring  what  it  might  at  the  sale.  More  than  one  answer 
may  be  given  to  this.  Elton  knew  of  that  arrangement  at  the 
sale,  and  before  the  property  was  sold.  This  is  distinctly  proved 
by  Nathan  Warrington,  who  swears  he  told  Elton  of  this  ar- 
rangement, that  he  might  have  a  chance  to  take  care  of  himself. 
And  yet  he  suffers  the  sale  to  proceed  free  of-  encumbrance,  and 
receives  of  the  proceeds  of  the  sale  the  half  belonging  to  the 
mortgagor,  for  whom  he  was  acting  as  agent. 

It  is  evident  he  understood  that  the  money  paid  was  paid  as 
in  full  for  the  property,  free  from  encumbrance.  It  was  so  paid. 
This  is  distinctly  proved.  If  he  received  it  knowing  the  pur- 
chaser paid  it  in  that  way,  this  court  cannot  give  effect  to  any 
mental  reservation  of  his  at  the  time ;  that  after  getting  the 
money,  he  would  so  arrange  it  as  to  throw  the  deficit  on  the 
first  mortgage,  and  collect  it  on  that.  If  he  should  think  him- 
self justified  in  so  doing,  under  an  idea  that  a  fraudulent  ar- 
rangement had  been  made  between  Warrington  and  Haines  as 
to  the  other  half,  the  court  differs.  This  idea  of  counter-cheat- 
ing cannot  be  entertained  here. 

It  was  said  that  the  property  should  be  sold  again,  under  a 
decree  of  this  court,  and  if  it  brings  more  than  it  did  before,  the 
surplus  should  be  applied  to  the  complainant's  mortgage.  This 
would  not  relieve  us  from  the  difficulty.  A  new  mortgage  has 
been  given  by  the  grantee  of  the  purchaser  at  the  commissiou- 


JUNE  TERM,  1845.  43 

Longstreet  v.  Shipman. 

ers'  sale,  for  $1500  dollars ;  and  there  is  no  probability  that  the 
property  would  bring  enough  to  satisfy  that,  after  paying  the 
two  mortgages  in  full.  It  is  better  to  meet  the  question  here. 

The  fact  that  eight  years  have  been  permitted  by  the  com- 
plainants to  elapse,  and  that  in  the  meantime  a  mortgage  has 
been  given  by  the  grantee  of  the  purchaser  at  the  commission- 
ers' sale,  is  entitled  to  no  small  influence  in  the  case,  if  it  was 
doubtful  without  it. 

The  complainants'  bill  will  be  ordered  to  be  dismissed. 

Order  accordingly. 


AARON   LONGSTREET  v.   CHARLES   T.  SHIPMAN  AND  WIFE 

ET  AL. 

A  mortgage  is  given  by  A,  living  in  this  state,  to  B,  of  New  York,  on  lands 
in  this  state,  to  secure  the  payment  of  a  bond.  The  mortgagor,  afterwards, 
for  purposes  of  his  own,  executes,  and  causes  to  be  recorded  in  the  proper 
office  of  this  state,  a  deed  of  the  premises  to  the  mortgagee.  The  mortgagee, 
without  having  assented  to  the  deed,  assigns  the  bond  and  mortgage,  with  all 
his  other  property,  for  the  benefit  of  all  his  creditors.  Afterwards,  a  creditor 
of  the  mortgagee  attaches  the  land.  The  attachment  will  not  hold  the  pro- 
perty against  the  mortgage. 


Ou  the  5th  of  March,  1839,  Charles  T.  Shipman  and  wife 
executed  a  mortgage  to  the  complainant,  on  real  estate  in  New- 
ark. On  the  28th  of  September,  1840,  they  executed  another 
mortgage  on  the  same  premises  to  the  defendant  Thomas 
Brooks.  Brooks  lived  in  the  city  of  New  York.  In  February, 
1841,  a  deed  of  the  premises  from  Shipman  and  wife  to  Brooks, 
was  recorded  in  the  clerk's  office  of  Essex  county.  On  the  29th 
of  March,  1842,  Brooks  assigned  all  his  estate,  real  and  per- 
sonal, to  the  defendants  Theophilus  Pierce  and  Jonathan 
Thorn,  of  the  city  of  New  York,  for  the  benefit  of  his  credi- 
tor?. The  bond  and  mortgage  from  Shipman  and  wife  to 
Brooks,  are  mentioned  in  the  schedule  accompanying  the  as- 
signment. In  December,  1842,  Brooks  was,  in  New  York, 
discharged  under  the  bankrupt  law,  and  the  defendant  Coven- 
try II.  Waddell  was  appointed  his  assignee  in  bankruptcy.  In 


44  CASES  IN  CHANCERY. 

Longstreet  v.  Shipman. 

January,  1843,  Shiprnau  was,  in  New  Jersey,  discharged  as  a 
bankrupt,  and  the  defendant  Charles  T.  Gray  was  appointed 
his  assignee.  In  the  vacation  preceding  the  November  Term, 
1842,  of  the  Supreme  Court,  an  attachment  was  issued  out  of 
that  court,  against  the  goods,  &c.,  and  lands  and  tenements  of 
Brooks,  at  the  suit  of  the  defendants  Smull  and  Oilman,  by 
virtue  of  which  the  premises  described  in  the  mortgages  were 
attached  as  the  property  of  Brooks,  subject  to  the  mortgage  to 
the  complainant. 

The  bill  is  filed  by  Longstreet,  to  foreclose  his  mortgage.  It 
states  the  foregoing  facts,  and  makes  Shipman  and  his  wife ; 
Gray,  his  assignee  in  bankruptcy  ;  Brooks,  Pierce  and  Thorn, 
the  assignees  of  Brooks  in  trust  for  his  creditors;  Waddell,  his 
assignee  in  bankruptcy;  Smull  and  Gilman,  the  attaching  credi- 
tors, and  certain  judgment  creditors  of  Shipman,  parties  de- 
fendants. 

The  controversy  is  between  the  defendants  Smull  and  Gil- 
man, the  attaching  creditors  of  Brooks,  and  the  defendants 
Pierce  and  Thorn,  the  assignees  of  Brooks  in  trust  for  all  his 
creditors.  There  is  no  difficulty  as  to  the  mortgage  of  the  com- 
plainant. 

The  cause  was  heard  on  the  pleadings  and  proofs. 

A.  Whitehead,  for  the  defendants  Pierce  and  Thorn. 

Giffbrd,  for  the  defendants  Smull  and  Gilman,  the  attaching 
creditors,  and  for  the  complainant. 

THE  CHANCELLOR.  The  attaching  creditors  insist  that  by 
the  deed  from  Shipman  and  wife,  the  mortgagors,  to  Brooks, 
the  second  mortgagee,  Brooks  became  the  owner  of  the  property, 
subject  only  to  the  Longstreet  mortgage ;  and  that  they  have 
become  entitled  to  this  interest  of  Brooks,  under  the  attachment. 
The  defendants  Pierce  and  Thorn  insist  that  the  deed  from 
Shipman  and  wife  to  Brooks,  was  made  without  the  knowledge 
or  consent  of  Brooks,  and  was  never  accepted  by  him  ;  and  that, 
therefore,  the  bond  and  mortgage  to  Brooks  remained  unex- 
tinguished,  and  were  valid  securities  when  assigned  to  them,  and 
are  still  valid  securities  in  their  hands. 


JUNE  TERM,  1845.  45 

Longatreet  v.  Shipnian. 

The  opposing  defendants  admit  that  the  bond  and  mortgage 
from  Shipman  and  wife  to  Brooks,  were  bona  fide;  and,  as 
between  them,  the  question  presented  is  whether,  under  the  tes- 
timony in  the  cause,  the  proceeds  of  this  property,  after  paying 
the  first  mortgage,  shall  go  to  the  attaching  creditors,  only,  of 
Brooks,  or  to  Pierce  and  Thorn,  in  trust  for  all  his  creditors, 
equally. 

If  the  deed  from  Shipraan  and  wife  to  Brooks  was  a  busi- 
ness transaction  between  them ;  if  Brooks  really  bought  the 
property,  and  agreed  to  take  it  in  payment  of  the  bond  which 
the  mortgage  on  it  was  given  to  secure — then  the  bond  and 
mortgage  were  extinguished,  and  Brooks  became  the  owner  of 
the  property,  subject  to  the  first  mortgage,  and  this  interest 
would  be  bound  by  the  attachment,  and  the  attaching  creditors 
would  take  the  proceeds  of  the  property,  subject  to  complain- 
ant's mortgage.  But,  under  the  evidence  in  the  cause,  I  am 
satisfied  that  the  deed  from  Shipman  to  Brooks  was  not  made 
on  a  sale  of  the  property.  The  making  of  that  deed,  and 
causing  it  to  be  recorded,  was  an  arrangement  by  Shipman,  for 
purposes  of  his  own.  And  if  Brooks  never  assented  to  it,  it 
would  be  no  extinguishment  of  his  bond  and  mortgage — he 
might  assign  his  bond  and  mortgage,  notwithstanding.  He 
swears  he  never  did  assent  to  it.  So  far,  then,  as  this  property 
may  be  worth  more  than  the  first  mortgage,  and  what  is  due, 
if  anything,  on  the  second  mortgage,  the  creditors  of  Shipman 
are  entitled  to  the  benefit  of  it. 

But  if  the  deed  from  Shipman  and  wife  to  Brooks  should  be 
considered  as  extinguishing  his  bond  and  mortgage,  so  that 
they  could  not  afterwards  be  assigned,  and  as  vesting  the  title 
of  these  premises  in  Brooks,  yet  the  attaching  creditors  are  in 
no  better  situation,  for  the  assignment  by  Brooks,  to  Pierce  and 
Thorn,  was  made  in  March,  1842,  previous  to  the  issuing  of 
the  attachment,  and  was  an  assignment  of  all  his  estate,  real 
and  personal. 

In  reference,  therefore,  to  the  matter  in  controversy  between, 
the  particular  creditors  of  Brooks,  who  have  joined  in  the 
attachment  issued  in  New  Jersey,  and  Brooks'  assignees  in  trust 
for  all  his  creditors,  the  investigation  of  the  case  conducts  us  to 
a  result  which,  even  if  it  were  at  all  doubtful,  would  still  yield 


46  CASES  IN  CHANCERY. 

Rogers,  an  alleged  Lunatic. 

the  satisfaction  of  being  agreeable  to  the  doctrine  of  this  court, 
that  among  creditors,  equality  is  equity.  The  attaching  credit- 
ors are  still  left,  in  reference  to  all  that  can  be  obtained  from 
these  premises  for  the  benefit  of  Brooks'  creditors,  on  an  equal 
footing  with  all  the  other  creditors  of  Brooks. 

It  is  the  opinion  of  the  court,  therefore,  that  the  said  attach- 
ment is  no  lien  on  the  mortgaged  premises.  A  reference  will 
be  ordered,  to  ascertain  the  amount  due  the  complainant  on  his 
mortgage,  and  the  amount  due  on  the  mortgage  given  by  Ship- 
man  and  wife  to  Brooks,  and  by  him  assigned  to  Pierce  and 
Thorn  j  and  a  sale  will  be  decreed,  and  so  much  of  the  pro- 
ceeds as  will  be  necessary,  will  be  applied  to  the  payment  of  the 
sums  found  due  on  the  mortgages,  and  the  residue  will  be 
directed  to  be  paid  to  the  assignee  in  bankruptcy  of  Charles  T. 

Shipman. 

Order  accordingly. 


IN  THE  MATTER  OF  THE  ALLEGED  LUNACY  OF  DAVID 

ROGERS. 

1.  A  guardianship  in  lunacy  may  be  superseded,  on  its  being  made  to 
appear  that  he  who  had  been  found  lunatic,  is  restored  to  sanity. 

2.  The  usual  course  is,  to  refer  it  to  a  master  to  take  proofs  as  to  the  state 
of  mind  of  the  petitioner,  and  to  report  the  proofs  and  his  opinion  thereon. 
But  though  the  master  reports  the  proofs  and  his  opinion  thereon,  that  the 
petitioner  is  restored,  the  Chancellor,  jn  his  discretion,  may  direct  the  peti- 
tioner to  appear  before  him  for  inspection  and  examination. 

3.  The  Chancellor,  in  his  discretion,  may  discharge  the  guardianship,  on  the 
ground  of  restored  sanity,  or  direct  an  issue  to  try  the  question. 


In  1843,  a  commission  in  the  nature  of  a  writ  de  lunatico 
inquirendo,  was  issued,  directed  to  commissioners  therein  named, 
to  inquire  of  the  lunacy  of  David  Rogers.  The  commission 
was  executed  in  1843,  and  an  inquisition  returned,  finding  that 
said  Rogers  was  a  lunatic. 

In  February,  1845,  a  petition  was  presented  to  the  court  by 
Rogers,  supported  by  affidavits  of  different  individuals,  pray- 
iug  that  his  guardians  may  be  discharged,  and  that  the  in- 


JUNE  TERM,  1845.  47 

Rogers,  an  alleged  Lunatic. 

quisition  and  the  proceedings  thereon  may  be  vacated  and  set 
aside. 

An  order  was  thereupon  made,  referring  it  to  a  master  to  in- 
quire whether  the  said  David  Rogers  is  restored  to  his  reason 
and  understanding,  and  is  of  sound  and  disposing  mind  and 
memory. 

The  master'  made  his  report  on  the  8th  of  April,  1845,  that 
the  petitioner  was  restored  to  his  reason  and  understanding,  and 
was  of  sound  and  disposing  mind  and  memory,  and  sent  up  the 
testimony  on  which  his  report  was  founded. 

This  report  was  not  satisfactory  to  the  guardians,  and  the 
Chancellor  directed  an  argument  before  him,  and  ordered  that 
tike  petitioner  be  brought  before  the  court  for  inspection  and  ex- 
amination. This  was  done,  and  on  that  occasion  he  was  sub- 
jected to  a  protracted  examination,  under  the  direction  of  the 
court,  by  questions  propounded  to  him  by  his  counsel  and  the 
counsel  of  the  guardians. 

The  matter  of  the  petition  was  then  argued  on  the  testimony 
returned  by  the  master,  and  the  answers  of  the  alleged  lunatic 
to  the  questions  which  had  been  propounded  to  him. 

Stratton  and  H.  W.  Green,  for  the  petitioner. 
Speneer  and  W.  L.  Dayton,  for  the  guardians. 

Cases  cited  for  the  petitioner.  1  Collingon  on  Idiots  48,  §  12; 
Ib.  49,  §  14 ;  Ib.  328,  §  15 ;  Saxton  24. 

Cases  cited  for  the  guardians.  Shelford  on  Lunatics  43,  51, 
206  ;  3  Brown's  Ch.  Rep.  403  ;  Ib.  277,  441  ;  1  Eng.  EccL 
Rep.  296  ;  4  Ib.  186,  191 ;  13  Ves.,  Jr.,  88;  11  Ib.  11 ;  1  Col- 
linson  324,  §  3. 

THE  CHANCELLOR.  I  am  clearly  of  opinion  that,  on  the 
testimony  and  the  inspection  and  examination  of  the  petitioner, 
a  final  order  should  not  be  made  against  the  prayer  of  the  peti- 
tion. The  only  doubt  I  have  been  able  to  entertain  is,  whether 
an  issue  should  not  be  awarded.  But,  on  consideration  of  the 
whole  case,  I  am  satisfied  that  a  final  order  vacating  the  in- 


48  CASES  IN  CHANCERY. 

Eogers,  an  alleged  Lunatic. 

quisition  should  be  made.  I  do  not  propose  to  go  at  large  into 
an  examination  of  the  testimony,  or  into  a  statement  of  the 
reasons  which  have  brought  me  to  this  conclusion.  It  is  a  sub- 
ject on  which  the  ordinary  rules  of  reasoning  furnish  no  certain 
guide,  and  in  reference  to  which,  deductions  apparently  the 
most  correct,  are  not  to  be  relied  on. 

Is  the  petitioner  now  capable  of  managing  his  own  affairs  ? 
Looking  at  the  testimony  without  reference  to  the  finding  of  the 
inquisition,  it  is  my  decided  opinion  that  he  is  so.  What  in- 
fluence, then,  should  be  allowed  to  the  fact  that,  two  years  ago, 
he  was  found  to  be  incapable?  It  is  certainly  entitled  to  some 
influence,  but  not  on  the  ground  that,  though  sane  now,  he  may 
again  be,  and  perhaps  is  more  likely  to  be  afflicted  in  the  same 
way.  The  court  can  act  only  in  reference  to  his  present  state 
of  mind  ;  the  future  is  inscrutable  to  us  all. 

The  only  influence  it  can  properly  exert  on  the  mind  of  the 
court  is,  in  causing  apprehension  that  all  the  evidence  of  his 
restored  sanity,  derived  from  all  the  sources  to  which  we  may 
address  ourselves,  may,  from  the  insidiousness  of  a  distemper  of 
the  mind,  be  fallacious.  This  apprehension  should  influence 
the  court  to  proceed  with  caution  in  vacating  an  inquisition. 
Yet  there  are  frequent  instances  of  restoration. 

This  brings  us  to  the  consideration,  what  degree  of  doubt  the 
court  should  indulge,  arising  from  the  inquisition  two  years  ago, 
against  the  idea  of  his  present  capability. 

On  one  side  it  was  contended  that  the  present  question 
should  be  determined  without  reference  to  the  finding  of  the 
inquisition  two  years  ago  ;  that  not  only  the  future,  but  the 
past  should  be  shut  out.  If  mind  is  what  some  suppose  it  to 
be,  this  may  be  correct ;  but  it  is  not  consistent  with  my  ideas 
of  it,  and  of  the  laws  that  govern  it. 

On  the  other  side,  it  was  contended  that  the  inquisition  should 
not  be  vacated,  unless  the  court  be  satisfied,  beyond  all  doubt, 
of  a  permanent  restoration  of  sanity.  This  may  do  when  we 
come  to  be  so  well  acquainted  with  the  nature  of  mind  as  fro  be 
able  to  say  of  the  mind  of  a  sane  individual,  that  he  will,  beyond 
all  doubt,  always  remain  sane. 

I  suppose  it  to  be  an  approach  to  the  true  rule  for  the  present 
action  of  the  court  to  say  that  if,  taking  the  finding  of  the 


JUXE   TERM,  1845.  49 

Bell  v.  Hall. 

inquisition  as  a  part  of  the  evidence  to  be  considered,  the  court 
is  satisfied  of  present  capacity,  the  relief  sought  by  the  petition 
should  be  granted. 

Looking  at  the  whole  case,  the  nature  of  the  incapacity  that 
once  existed,  or  was  supposed  to  exist,  as  described  by  the  wit- 
nesses, the  symptoms  of  which,  as  they  say,  were  trading  and 
driving  about;  and  considering  that  for  the  last  eight  months, 
at  least,  the  petitioner  has  had  the  management  and  control  of 
his  farming  and  other  business,  and  that  his  own  immediate 
family,  whose  interests  are  more  at  stake  than  those  of  any 
other  person,  are  satisfied  of  his  capacity  to  manage  his  affairs; 
and  considering  further,  that  if  disease  in  this  form  should  again 
be  laid  on  him,  the  guardianship  of  this  court  could  again  be 
extended  over  him  and  his  property,  I  am  of  opinion  that  the 
relief  sought  by  the  petition  should  be  granted. 

Order  accordingly. 
CITED  in  Matter  of  Weis,  1  C.  E.  Or.  319. 


THE   ADMINISTRATOR  OF   EDWARD   S.  BELL  v.  JOHN    B. 
HALL  AND  HENRY  B.  STOLL. 

1.  An  application  for  leave  to  amend  an  answer,  or  file  a  supplemental  an- 
swer, after  depositions  have  been  taken,  should  be  listened  to  with  distrust. 

2.  The  defendant  had  answered  that  he  did  not  know  of  a  certain  agree- 
ment, until  after  the  assignment  to  him  of  a  certain  judgment  and  execution. 
The  execution  had  been  levied  on  the  goods  of  the  defendant  in  the  execu- 
tion.    The  defendant  in  this  court,  who  had  put  in  his  answer,  had  released 
the  goods  levied  on  from  the  lien  of  the  execution.     He  moved  for  leave  to 
amend  his  answer  by  stating  that  he  did  not  know  of  the  agreement  until 
after  he  had  executed  the  release,  or  for  leave  to  file  a  supplemental  answer  to 
make  that  allegation.    The  motion  was  denied. 

3.  What  the  affidavit  on  whicli  an  application  to  amend  an  answer,  or  file 
a  supplemental  answer,  should,  in  general,  state. 


The  case  made  by  the  bill  is  this:  In  March,  1840,  Henry 
B.  Stoll  and  Edward  S.  Bell  entered  into  partnership  as  nier- 
chants,  at  Stanhope,  under  the  name  of  Stoll  and  Bell,  and 
bought  a  stock  of  goods  from  Andrew  A.  Smalley,  of  that  place, 
and  gave  to  Smalley  their  notes  for  the  price;  one  of  which  he 


50  CASES  IN  CHANCERY. 

Bell  v.  Hall. 

assigned  to  Coursen  and  Woodruff,,  of  New  York.  In  March, 
1841,  the  partnership  of  Stoll  and  Bell  was  dissolved,  by  mu- 
tual consent,  by  an  agreement  in  writing,  by  which,  among 
other  things,  it  was  agreed  that  Stoll  should  take  the  stock  of 
goods  on  hand  and  the  accounts  and  the  effects  of  the  partner- 
ship, and  pay  the  debts  of  the  partnership  and  release  Bell 
therefrom.  In  May,  1843,  Coursen  and  Woodruff  recovered 
judgment  against  Stoll  and  Bell,  on  the  note  of  Stoll  and  Bell 
so  assigned  to  them,  and  caused  an  execution  to  be  issued 
thereon,  returnable  to  the  August  Term,  1843,  of  the  Sussex 
Circuit  Court.  The  execution  was  levied  on  the  personal  estate 
of  Stoll,  including  his  stock  of  goods  and  merchandise,  and  ou 
his  real  estate;  and  was  also  levied  on  the  personal  and  real 
estate  of  Bell.  Stoll  paid  Coursen  and  Woodruff  $100  on  the 
execution.  The  judgment  and  execution  were  then  assigned  by 
C.  and  W.  to  the  defendant,  John  B.  Hall.  After  this,  Stoll 
continued  to  sell  from  the  stock  of  goods  levied  on,  and  Hall 
gave  to  the  sheriff  directions  to  stay  proceedings  on  the  execu- 
tion. Bell  then  informed  Hall  of  the  agreement  made  between 
Stoll  and  him  at  the  dissolution,  that  Stoll  was  to  pay  the  debts 
of  the  firm.  Stoll  afterwards  sold  and  delivered  to  Andrew  A. 
Smalley  the  whole  stock  of  goods  ;  and  Hall  released  to  Smalley 
all  claim  thereon  under  the  said  judgment  and  execution.  Smal- 
ley gave  his  notes  to  Stoll  fi3r  the  price  of  the  goods,  which  notes 
were  transferred  by  Stoll  to  Hall. 

Hall,  in  his  answer,  says  that  at  the  time  of  the  assignment 
of  the  judgment  and  execution  to  him,  he  had  no  knowledge  or 
intimation  of  any  agreement  between  Stoll  and  Bell  that  Stoll 
was  to  pay  the  debts  of  the  firm  ;  that  he  had  never  seen  any 
such  agreement,  and  had  no  knowledge  of  any,  until  some  time 
after  the  assignment  of  the  judgment  and  execution  and  the  stay 
of  the  execution  given  by  him  to  the  sheriff. 

A  replication  was  filed,  and  depositions  have  been  taken  on 
both  sides. 

A  motion  is  now  made  for  leave  to  amend  the  answer  of 
Hall,  by  inserting  an  allegation  that  he  had  no  knowledge  of 
the  agreement  between  Stoll  and  Bell,  till  after  the  release  given 
by  him  to  Smalley  was  executed,  or  for  leave  to  file  a  supple- 
mental answer  to  make  that  allegation. 


JUNE  TERM,  1845.  51 

Bobbins  v.  Abrahams. 
Johnson  and  Haines,  for  the  motiou. 
Leport  and  P.  D.  Vroom,  contra. 

THE  CHANCELLOR.  By  the  present  practice  in  England, 
an  amendment  of  an  answer  is  not  permitted  ;  leave  must  be 
obtained  to  file  a  supplemental  answer.  I  am  not  aware  that 
this  rule  has  been  adopted  in  this  court.  But,  whether  the  ap- 
plication is  for  leave  to  amend  the  answer,  or  for  leave  to  file  a 
supplemental  answer,  if  the  allegation  proposed  to  be  super- 
added  is  material,  and  prejudicial  to  the  complainant,  and  the 
application  is  not  made  until  after  depositions  have  been  taken, 
it  should  be  listened  to  with  distrust.  It  is  an  application  to  the 
discretion  of  the  court.  An  omission  by  plain  mistake  might, 
under  favorable  circumstances,  be  allowed  to  be  supplied  ;  but, 
in  general,  the  defendant  should  state  by  affidavit  that,  when 
he  put  in  his  answer,  he  did  not  know  the  circumstances  on 
which  he  makes  the  application,  or  any  other  circumstances  on 
which  he  ouglit  to  have  stated  the  fact  otherwise.  1  Smith's 
Ch.  Prac.  270 ;  4  Hen.  and  MunJ.  405. 

I  think  it  would  be  a  dangerous  precedent,  in  this  stage  of 
the  cause,  to  allow  so  material  an  amendment  as  that  proposed 
to  be  made. 

Motion  denied. 


JOHN  EOBBINS  v.  GEORGE  D.  ABRAHAMS  AND  PHEBE,  HIS 
WIFE,  AND  JAMES  BURROWS,  HER  TRUSTEE. 

If  there  be  ground  for  apprehension  on  the  part  of  the  wife  that  her  husband 
will  not  make  a  proper  defence  for  her,  leave  will  be  granted  to  her  to  answer 
separately  from  her  husband. 

In  this  case,  the  answer  of  the  wife  and  her  trustee  was,  at 
the  last  term,  on  motion  of  the  complainant,  ordered  to  be 
suppressed.  On  petition  of  the  wife,  a  motion  is  now  made 
that  the  wife  have  leave  to  answer  separately  from  her 
husband. 


62  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

The  bill  is  for  the  foreclosure  of  a  mortgage  given  by  her  and 
her  trustee  to  secure  a  bond  given  by  the  husband  for  money 
borrowed  by  him. 

P.  D.  Vroom,  for  the  motion.     He  cited  Mitford's  PI.  151. 
C.  S.  Green,  contra. 

THE  CHANCELLOR.  From  the  nature  of  the  case,  as  dis- 
closed by  the  petition  and  the  arguments  of  counsel,  I  am  of 
opinion  that  it  is  a  proper  case  in  which  to  allow  the  wife  to 
answer  separately.  It  is  a  case  in  which  the  husband  might 
not  be  disposed  to  set  up  a  defence,  which,  if  made,  might  avail 
her. 

If  from  such  or  any  other  cause,  there  is  ground  for  appre- 
hension on  the  part  of  the  wife  that  her  husband  will  not  make 
a  proper  defence  for  her,  she  will  be  allowed  to  answer  separately 
from  her  husband. 

Order  accordingly. 


ANDREW  CORRIGAN   v.  THE   TRENTON    DELAWARE   FALLS 

COMPANY. 

The  impression  of  a  distinctive  corporation  seal  on  an  instrument  calling 
for  the  seal  of  the  corporation,  held  to  be  a  seal. 


On  a  bill  filed  May  29th,  1843,  against  The  Trenton  Dela- 
ware Falls  Company,  by  Andrew  Corrigan,  a  judgment  creditor 
of  the  said  company,  for  himself  and  all  others  the  creditors 
and  stockholders  of  the  said  company,  who  should  come  in 
and  seek  relief  by  and  contribute  to  the  expense  of  the  suit, 
stating  the  insolvency  of  the  company,  and  the  su pension  of 
its  ordinary  business  for  want  of  funds  to  carry  on  the  same,  au 
injunction  was  granted,  and  receivers  were  appointed  to  take 
,  -sion  of  the  property  of  the  company,  under  and  by  virtue 
of  the  provisions  of  the  act  entitled  "  An  act  to  prevent  frauds 
by  incorporated  companies,"  passed  February  16th,  1829. 


JUNE  TERM,  1845.  53 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

••  ••  ......         ,. . ,  .     ,        ,    ,    ,  „ | 

In  the  progress  of  the  cause,  and  on  the  20th  of  January, 
1845,  in  pursuance  of  an  order  theretofore  made  in  the  cause, 
directing  the  receivers  to  ascertain  and  report  the  amounts  and 
order  of  priority  of  the  mortgages  and  judgments,  and  the 
amount  of  other  debts  due  from  the  company,  the  receivers 
made  report  accordingly.  This  report  was  brought  before  the 
Chancellor  on  separate  appeals  of  several  judgment  creditors 
and  a  mortgage  creditor  of  the  company.  A  number  of  excep- 
tions were  taken  to  the  report.  The  exception  which  was 
argued  prior  to  this  term,  was  an  exception  to  several  of  the 
mortgages  reported  as  having  been  given  by  the  company,  on 
the  ground  alleged,  that  they  were  not  executed  under  a  lawful 
seal.  The  concluding  clause  of  the  mortgages,  respectively, 
calls  for  the  seal  of  the  corporation,  and  the  impression  of  a 
seal  purporting  to  be  the  distinctive  seal  of  the  corporation,  at 
the  proper  place  for  a  seal,  appeared  on  the  papers  on  which  the 
writings  purporting  to  be  mortgages,  respectively,  were  written, 
without  wax  or  seal  or  any  other  substance. 

W.  Halsted,  for  the  appellants,  cited  1  Hal.  169 ;  6  Hal. 
178  ;  5  Johns.  Rep.  238  ;  2  Hill's  Rep.  227 ;  3  Ibid.  493 ; 
and  contended  that  a  mere  impression  on  the  paper  was  a 
nullity. 

H.  W.  Green,  contra.  The  impression  of  the  seal  is  there, 
and  the  attestation  is  correct.  The  question  is,  is  this  a  seal  ? 
Our  Supreme  Court  has  decided  that  an  ink  scroll  is  no  seal, 
except  in  instruments  for  the  payment  of  money.  The  case 
cited  by  Mr.  H.,  from  5  Johns.,  decides  that  an  ink  scroll  or 
device  is  not  a  seal. 

In  3  Inst.  169,  it  is  said,  "Sigillum  est  cera  impressa,  et 
fine  impress ione  nullum  est  sigillum."  This  proves  too 
much  ;  for  it  is  clear  that  a  wafer  and  paper  is  good  without 
an  impression.  He  read  from  Pet-kins,  §§  134,  136,  and  from 
2  Neto  York  Term  Rep.  362.  In  Virginia,  an  ink  scroll  is 
sufficient,  if  the  concluding  clause  calls  for  a  seal.  1  Wash. 
Rep.  Ct.  of  Appeals  in  Virginia  42,  171.  In  Pennsylvania, 
an  ink  scroll  is  sufficient,  and  this  independent  of  statute. 
1  DaU.  63;  5  Binney  241;  1  8erg.  and  Rawle  72;  2  Ibid, 


64  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

503;  I  Watts  322.  In  Bee's  Rep.  140,  the  doctrine  is,  there 
must  be  something  capable  of  receiving  an  impression.  He 
cites  4  Giif.  Law  Reg.  1201,  note  1.  New  York  and  New 
Jersey  are  the  only  two  states  in  which  it  is  held  that  a  scroll 
is  insufficient.  He  is  not  aware  that  the  question  should  be 
considered  so  settled  by  the  cases  decided  in  our  Supreme  Court, 
as  to  control  the  opinion  of  this  court.  In  reference  to  the  late 
decisions  in  New  York,  reported  in  Hill's  Rep.,  he  says  the 
Kents  and  Spencers  of  New  York  are  gone. 

The  wax  is  not  the  seal,  but  the  impression.  Here  is  the  im- 
pression, incapable  of  being  erased.  Where  is  the  common  sense 
of  first  putting  paste,  and  then  paper  over  it,  and  then  an  im- 
pression ?  The  wax  is  abandoned,  the  impression  is  abandoned, 
out  Chief  Justice  Kent  said  there  must  be  some  sticking  sub- 
stance yet.  This  corporation  say  they  have  annexed  their  seal, 
and  if  the  seal  is  to  be  proved,  a  witness  may  be  called  to  prove 
it  is  their  seal.  He  hopes  the  courts  in  this  state  will  not  follow 
the  further  step  taken  in  the  cases  in  New  York,  reported  in  Hill's 
Rep.  If  we  go  to  the  common  law,  we  must  have  wax  and  an 
impression.  The  doctrine  contended  for  on  the  other  side  would 
lead  to  disastrous  consequences.  This  question  as  to  a  corporate 
seal  is  new  in  this  state.  Again,  the  instruments  are  acknowl- 
edged as  the  deeds  of  the  company,  and  are  recorded,  and  the 
judgment  creditors  had  notice  of  these  mortgages. 

J.  Wilson,  on  the  same  side,  said  that  the  mere  impression  has 
been  used  on  the  process  of  this  court,  and  is  used  in  proceed- 
ings of  the  United  States. 

Mr.  Halsted,  in  reply.  This  is  simply  a  question  between 
two  creditors,  who  shall  have  the  fund.  He  thinks  the  question 
is  decided  by  the  Supreme  Court,  and  that  this  court  will  simply 
declare  what  the  law  now  is.  The  Chancellor,  on  mere  ques- 
tions of  law,  follows  the  decisions  at  law.  If  those  decisions 
arc  wrong,  let  them  be  overruled  by  the  Court  of  Errors.  The 
authorities  cited  by  Mr.  Green,  except  the  case  in  Watts,  were 
before  our  Supreme  Court  when  they  gave  the  law  in  the  case 
cited.  Suppose  Chief  Justice  Kirkpatrick  and  Chief  Justice 
Ewing  were  led  in  this  matter  by  Chief  Justice  Kent,  who  Mr. 


JUNE  TERM,  1845.  55 


Corrigan  v.  Trenton  Delaware  Falls  Co. 


Green  said  dealt  in  classics  as  well  as  in  civil  law  ;  and  suppose 
ihe  opinion  of  this  court  should  be  different  from  the  decisions 
of  our  Supreme  Court;  is  this  the  place  to  set  those  decisions 
aside?  This  court  is  only  concurrent  with  the  Supreme  Court; 
and  courtesy  requires  that  it  respect  the  opinion  of  that  court. 
Shall  the  two  courts  come  in  conflict  on  this  question?  It  is  a 
common  law  question,  belonging  appropriately  to  the  Supreme 
Court;  and  if  Mr.  Green's  argument  is  good,  it  destroys  the  de- 
cisions of  that  court.  It  was  said  there  is  a  distinction  between 
orporate  seals  and  the  seals  of  individuals.  Has  a  corporation 
any  better  right  to  say  what  shall  be  a  seal  than  an  individual 
has?  It  was  said  the  corporation  declared  it  to  be  their  seal. 
Did  not  the  individual  who  executed  the  indenture,  in  the  case 
decided  by  the  Supreme  Court,  declare  the  same  thing?  Sup- 
pose I  put  a  scroll  to  a  paper  writing  purporting  to  be  my  deed, 
and  call  it  a  seal,  does  that  make  it  a  seal?  This  court  has 
nothing  to  do  with  consequences.  The  practice  as  to  subpoenas 
in  chancery,  if  it  ever  was  as  Mr  Wilson  says  it  was,  has  been 
corrected.  Perhaps  the  decisions  of  the  Supreme  Court  cor- 
rected that  loose  practice. 

The  Chancellor  intimated  that  if  either  party  desired  it,  he 
should  be  disposed  to  send  the  question  to  the  Supreme  Court, 
as  the  more  proper  tribunal  for  its  decision  ;  but  if  not,  he  would 
decide  it.  Neither  party  expressing  such  desire,  the  Chancellor 
said  he  should  hold  that  the  mortgages  were  well  sealed.  The 
opinion  is  as  follows: 

THE  CHANCELLOR.  I  do  not  consider  the  decisions  of  the 
Supreme  Court  in  reference  to  ink  scrolls,  as  ruling  this  question. 
According  to  Lord  Coke,  a  seal  is  wax  with  an  impression,  be- 
cause wax  without  an  impression  is  not  a  seal.  "  Sigillum  est 
cera  impressa,  quia  cei'a  sine  impressione  non  est  sigillum."  It 
is  clear  that  by  this  definition  the  impression  makes  the  seal. 
It  is  true  that  if  this  definition  is  strictly  taken,  there  must  not 
only  be  an  impression,  but  that  impression  must  be  made  on 
wax.  But  the  impression  is  the  sine  qua  non  of  Lord  Coke's 
seal  ;  the  wax  is  only  auxiliary  ;  it  adheres  to  the  paper  and 
receives  the  impression,  and  is  the  material  which  annexes  the 


56  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

impression  to  the  instrument.  But  we  have  long  since  grown 
out  of  the  substance  or  essence  of  Lord  CoKe's  definition,  the 
impression;  the  question  is,  are  we  yet  fast  in  the  wax? 

We  have  said  by  long  practice,  that  both  these  were  not  ne- 
cessary. With  which  of  them  would  Lord  Coke  have  been  the 
better  satisfied  ?  Clearly  with  the  impression  ;  nay,  he  would 
not  have  dispensed  with  that  at  all.  What  proportion  of  the 
seals  used  on  private  papers  now-a-days  would  fall  within  his 
definition  ?  A  wafer  placed  at  the  end  of  the  name,  with  a 
piece  of  paper  on  it,  or  without  the-  piece  of  paper,  and  without 
any  impression,  is  a  seal ;  and  by  the  same  rule  or  reasoning  or 
absence  of  reasoning,  a  drop  of  sealing-wax  dropped  in  proper 
position  in  relation  to  the  name,  and  without  impression,  or  bit 
of  paper  upon  it,  would  be  a  seal ;  provided  the  writing  called 
for  a  seal.  Lord  Coke's  definition  has  been  entirely  departed 
from,  and  the  mere  wax  or  wafer,  put  on  to  receive  the  seal,  is 
recognized  as  the  seal.  Plow  can  it  be  said  that  the  impression, 
the  essence  of  the  definition,  appearing  on  the  paper,  is  no  seal, 
because  it  is  impressed  without  wax?  Chief  Justice  Kent,  in 
the  case  of  Warren  v.  Lynch,  5  John.  Rep.  238,  which  decides 
that  an  ink  scroll  is  no  seal,  says,  "  the  law  has  not,  indeed, 
declared  of  what  precise  materials  the  wax  shall  consist ;  and 
whether  it  be  a  wafer  or  any  other  paste  or  matter  sufficiently 
tenacious  to  adhere  and  receive  an  impression,  is,  perhaps,  not 
material."  Is  any  such  matter  material,  then,  if  the  seal  can 
be  impressed  without  it?  In  the  above  cited  case,  Chief  Justice 
Kent  says,  "  the  scroll  has  no  one  property  of  a  seal."  It  is 
evident  from  this  that  he  does  not  consider  a  scroll  as  an  im- 
pression ;  and  here  there  is  a  distinction  between  the  case  of 
Warren  v.  Lynch,  as  to  scrolls,  and  the  like  decisions  of  our 
Supreme  Court,  and  the  case  before  us;  for  here  the  impression 
appears,  and  it  is  the  impression  of  the  corjwrate  seal,  the  known, 
recognized  and  distinctive  seal  of  the  party  executing  the  paper. 
If  wax  without  the  impression  of  a  distinctive  seal  has  come  to 
be  a  seal,  I  do  not  see  why  the  impression  of  a  distinctive  seal 
on  the  paper  itself  should  be  rejected  as  no  seal,  simply  because 
it  is  made  to  appear  on  the  paper  without  wax. 

Perhaps  as  succinct  and  sensible  an  account  of  the  ancient 
use  of  seals  as  is  to  be  found,  is  that  given  in  1  Morgan's  Es- 


JUNE  TERM,  1845.  57 

Corrigan  *  Trenton  Delaware  Falls  Co. 

says  83.  It  is  there  said,  "  The  seals  of  private,  persons  are 
not  full  evidence  by  themselves,  for  it  is  not  possible  to  suppose 
these  seals  to  be  universally  known,  and  consequently  they  ought 
to  be  attested  by  something  else,  i.  e.,  by  the  oath  of  some  that 
have  knowledge  of  them  ;  [that  is,  knowledge  that  the  person 
whose  seal  it  purports  to  be,  uses  that  seal ;]  and  when  these 
seals  are  thus  attested,  they  ought  to  be  delivered  in  to  the  jury, 
because,  though  part  of  their  credit  arises  from  the  oath  that 
gives  an  account  of  their  sealing,  yet  another  part  of  their  credit 
arises  from  the  distinction  of  their  own  impression;  for  certainly 
every  family  had  its  own  proper  seal,  as  it  is  now  in  corporations. 
By  this  they  distinguished  their  manner  of  contracting  one  from 
the  other,  and  by  false  impressions  of  the  seals  they  discovered 
a  counterfeit  contract ;  and  therefore  it  was  not  the  oath,  but  the 
impression  of  the  seal  accompanying  it,  that  made  up  the  com- 
plete credit  of  the  instrument.  But  since,  in  private  contracts, 
the  distinction  of  sealing  is  in  general  worn 'out  of  use,  and  men 
usually  seal  with  any  impression  that  comes  to  hand,  to  be  sure, 
there  must  be  evidence  of  putting  the  seal ;  because,  at  this  day, 
little  can  be  discovered  from  the  bare  impression."  This  is,  of 
course,  spoken  of  private  seals,  as  now  used,  and  not  of  corpo- 
rate seals. 

In  1805,  Justice  Livingston,  in  delivering  the  opinion  of  the 
court  in  Meredith  v.  Hinsdale,  2  N.  Y.  Term  Rep.  362,  holds 
this  language  :  "  However  ancient  the  use  of  seals  as  a  mark 
of  authenticity  'to  instruments  may  be,  or  to  whatever  cause 
their  origin  may  be  ascribed,  it  is  certain  that,  in  modern  times, 
a,  private  seal  is  not  regarded  as  evidence  of  truth,  or  of  belong- 
ing to  the  party  to  whose  signature  it  is  affixed  ;  but  that  men 
promiscuously  use  each  other's  seals,  without  attention  to  the 
impression  or  coat  of  arms.  Thus  it  is  no  uncommon  thing 
to  see  a  seal  containing  the  device,  arms,  and  perhaps  name  of 
one  person,  used  to  authenticate  the  instrument  of  another.  If 
it  be  not  necessary,  then,  that  in  sealing  a  deed,  the  grantor 
should  affix  his  own,  but  may  adopt  the  seal  of  a  stranger, 
why  should  it  be  exacted  that  the  materials  on  which  the  im- 
pression is  made  should  be  of  wax,  wafer,  or  of  any  other  particu- 
lar composition  ?  Why  should  not  any  impression  or  mark 
answer  us  well  as  the  common  mode  of  sealing,  provided  it  be 

VOL.  i.  D 


58  CASES   IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

durable,  whether  it  be  stamped  on  the  paper  itself,  or  on  some- 
thing laid  upon  it,  if  it  be  made  as  a  solemn  act  of  confirma- 
tion, and  deliberately  acknowledged  as  the  seal  of  the  party 
making  it."  But  the  cause  was  decided  on  another  point.  The 
instrument  being  made  in  Pennsylvania,  where  a  scroll  is  recog- 
nized as  a  seal,  the  court  in  New  York  treated  it  as  such,  adopt- 
ing the  law  of  the  place  of  the  contract.  At  this  time  Kent  was 
Chief  Justice,  and  Thompson,  Livingston,  Spencer,  and  Totnp- 
kins,  justices. 

Five  years  afterwards,  the  question  came  up  again  before  the 
Supreme  Court  of  New  York,  in  the  case  of  Warren  v.  Lynch, 
5  John.  Rep.  238.  Kent,  Chief  Justice,  and  Justices  Thomp- 
son and  Spencer,  were  still  on  the  bench,  and  the  places  of 
Justices  Livingston  and  Tompkins  had  been  supplied  by  Justices 
Van  Ness  and  Yates.  The  question  in  this  case  arose  on  a 
paper  writing  in  other  respects  in  the  form  of  a  note  concluding, 
"  Witness  my  hand  and  seal/'  signed  by  the  maker,  with  the 
letters  L.  S.  enclosed  in  an  ink  scroll,  placed  at  the  end  of  (he 
name,  where  a  seal  is  usually  affixed  to  sealed  instruments. 
The  question  was,  whether  by  the  laws  of  New  York,  this  was 
a  sealed  instrument.  The  opinion  was  delivered  by  the  Chief 
Justice.  Before  proceeding  to  examine  the  question,  he  takes 
occasion  to  say  that  what  was  said  by  Justice  Livingston,  in 
Meredith  v.  Hinsdale,  in  reference  to  the  ink  scroll,  was  his 
own  opinion,  and  not  that  of  the  court.  He  then  says  that 
the  object  in  requiring  seals,  as  he  presumes,  was  misapprehended 
by  President  Pendleton  and  by  Mr.  Justice  Livingston.  It 
was  not,  as  they  seem  to  suppose,  because  the  seal  helped  to 
designate  the  party  who  affixed  it  to  his  name;  for  one  person 
might  use  another's  seal.  The  policy  of  requiring  seals  con- 
gists  in  giving  ceremony  and  solemnity  to  the  execution  of  im- 
portant instruments,  by  means  of  which  the  attention  of  the 
parties  is  more  certainly  and  effectually  fixed.  Now  these  two 
ideas  are  not  at  all  opposed  to  each  other ;  the  reason  may  be, 
•as  Chief  Justice  Kent  states,  to  give  ceremony  and  solemnity, 
and  yet  the  seal  might,  and  no  doubt  did,  in  ancient  times,  help 
to  designate  the  person  who  affixed  it  to  his  name.  The  ex- 
pression, "  One  person  might  use  another's  seal/'  is  proof  that, 
in  ancient  times,  before  chirography  became  general,  some  had 


JUNE  TERM,  1845.  59 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

their  distinctive  seals,  and  that  the  seal  helped  to  designate  the 
person  who  affixed  it  to  his  name;  and  if  it  were  not  so,  why 
the  ancient  idea  of  giving  sealed  instruments  to  the  jury  ? 

A  word  as  to  the  solemnity  spoken  of  by  Chief  Justice  Kent. 
Does  it  consist  in  the  mere  symbol  ?  Is  there  any  more  solem- 
nity in  a  bit  of  wafer  than  in  a  scroll  made  with  a  pen  ?  The 
feeling  of  solemnity,  if  any,  attending  the  execution  of  a  sealed 
instrument,  arises  from  a  sense  of  the  effect  of  the  instrument, 
and  not  from  the  symbol  used  to  characterize  it  as  a  sealed  in- 
strument ;  and  as  to  the  remark  of  the  court,  that  to  adopt  a 
scroll  for  a  seal  would  be  to  abolish  all  distinction  between 
writings  sealed  and  writings  not  sealed,  I  apprehend,  with  great 
respect,  it  was  not  well  considered.  Our  statute  authorizing  a 
scroll  for  a  seal  to  money  bonds,  has  had  no  such  effect,  and,  on 
the  principle  above  stated,  could  have  no  such  effect. 

Instruments  are  now  proved  by  proving  the  putting  of  the 
seal,  by  producing  the  subscribing  witness,  who  swears  to  the 
signature,  and  the  acknowledgment  of  the  seal.  The  seal  may 
be  wax  or  wafer,  without  paper  or  with,  and  without  impres- 
sion, and  the  same  man  may  use,  as  a  seal,  one  thing  to-day 
and  another  to-morrow.  As  seals  are  used  now,  there  seems  to 
be  no  good  reason  why  I  may  not  affix  a  scroll,  and  acknowl- 
edge that  to  be  my  seal. 

But  it  is  not  necessary,  on  this  occasion,  to  come  in  conflict 
with  the  decisions  of  the  Supreme  Court  as  to  ink  scrolls.  L 
am  of  opinion  that  the  impression  of  a  distinctive  corporation 
seal,  on  an  instrument  calling  for  the  seal  of  the  corporation,  Is 
a  lawful  seal. 


60  CASES  IN  CHANCERY. 


Smith  v.  Loomis  et  al. 


JACOB  B.  SMITH  v.  LUTHER  LOOMIS,  SAMUEL  P.  LYMAN,  THE 
SOMERVILLE  MANUFACTURING  COMPANY  ET  AL. 

1.  A  corporation  being  embarrassed  in  its  circumstances,  six  of  the  stock- 
holders, two  of  them  being  also  directors,  enter  into  an  agreement  that,  at  any 
sale  that  may  be  made  of  the  property  of  the  company,  either  on  execution 
or  by  the  directors  of  the  company,  the  property  shall  be  bought  by  two  of  the 
stockholders  w.ho  are  parties  to  the  agreement,  on  the  best  terms  possible,  and 
that  the  property,  when  so  purchased,  shall  be  held  by  them  in  trust,  half  for 
themselves,  and  half  for  the  other  parties  to  the  agreement,  each  party  to  the 
agreement  to  pay,  pro  raid,  for  the  purchase  of  the  property,  according  to  his 
interest  in  the  same,  to  be  thereafter  declared.    Two  days  after  the  making  of 
this  agreement,  the  two  directors  who  are  parties  to  it,  and  two  other  directors 
of  the  company,  by  an  instrument  executed  under  their  individual  hands  and 
seals,  convey  to  the  two  stockholders  who  by  the  said  agreement  were  to  be 
the  purchasers,  for  a  money  consideration,  acknowledged  in  the  instrument  to 
have  been  received,  all  the  personal  property  of  the  company.     On  the  day 
after  this  last  writing  was  made,  a  judgment  was  confessed  by  the  company, 
and  a/,  fa.  issued  thereon,  and  levied  on  all  the  property  of  the  company.    A 
few  days  afterwards,  in  pursuance  of  a  resolution  passed  by  the  votes  of  one 
of  the  directors,  who  is  a  party  to  the  said  agreement,  and  two  other  directors 
of  the  company,  the  president  of  the  company  executes  and  delivers  to  the 
two  stockholders  who,  by  the  agreement,  are  to  buy  the  property,  a  deed  of 
all  the  real  estate  of  the  company,  for  a  money  consideration  therein  acknowl- 
edged to  have  been  received,  subject  to  the  said  confessed  judgment.   The  two 
stockholders  to  whom  all  the  property  of  the  company  is  thus  conveyed,  then 
procure  an  assignment  of  this  judgment,  and  cause  the  sheriff  to  advertise  for 
sale  by  virtue  of  the  execution   issued  thereon,  all  the  property  of  the  com- 
pany.   The  answer  states  that  it  was  a  part  of  the  arrangement  that  the  con- 
sideration money  for  the  property  should  be  paid  and  applied  directly  on 
account  of  the  company,  to  the  creditors  thereof,  and  that  they,  the  two  stock- 
holders to  whom  the  property  was  conveyed,  should  pay,  out  of  the  net  earn- 
ings of  the  half  held  by  them  in  trust  for  the  other  parties  to  the  arrange- 
ment, after  paying  the  costs  of  completing  and  putting  the  works  in  operation, 
a  further  sum  sufficient  to  satisfy  the  remaining  debts  of  the  company  ;  and 
that  they  should  put  the  machinery  in  operation  and  make  it  productive  as 
soon  as  circumstances  would  permit.     A  motion  to  dissolve  an  injunction 
issued  on  a  bill  filed  by  a  subsequent  judgment  creditor,  restraining  the  sale 
on  the  said  execution,  was  denied. 

2.  In  genera),  an  injunction  will  not  be  dissolved  unless  all  the  defendants 
implicated  in  the  charge  have  answered. 

3.  The  substance  of  a  charge  must  be  admitted  or  denied  ;  a  mere  literal 
answer  is  insufficient. 


JUNE  TERM,  1845.  61 


Smith  v.  Loomis  et  al. 


4.  Where  a  matter  is  charged  in  the  bill  which  must,  if  true,  be  within  the 
knowledge  of  the  defendant,  the  substance  of  the  charge  should  be  answered 
directly,  not  evasively,  nor  by  way  of  negative  pregnant. 

5.  "Where  the  circumstances  charged  are  suspicious,  or  have  the  appearance 
of  collusion  and  fraud,  a  defendant  will  be  held  to  strict  rule  in  answering. 


The  bill  states  the  incorporation  of  the  Somerville  Manufac- 
turing Company,  in  March,  1837;  the  capital  stock  not  to  ex- 
ceed $250,000,  in  shares  of  $100  each  ;  five  directors,  being 
stockholders,  to  be  elected  when  500  shares  should  be  subscribed 
for,  to  hold  their  offices  for  one  year,  and  until  others  should  be 
elected  ;  the  directors  to  choose  a  president  out  of  their  own 
number  when  $40,000  should  be  paid  in.  That  Henry  Ibbot- 
son  owns,  or  pretends  to  own,  396  shares,  Francis  P.  Schoals 
288  shares;  that  Luther  Loomis  has  standing  in  his  name  40 
shares;  that  Robert  Van  Renselaer  claims  90  shares,  Jared 
N.  Stebbins  70  shares,  and  William  Packer  one  share  ;  that 
other ^shares  must  be  out,  but  in  whose  hands  the  complain- 
ant is  ignorant,  and  has  no  means  of  ascertaining.  That 
the  first  election  for  directors  took  place  February  1st,  1839, 
and  that  other  elections  have  been  held  from  time  to  time, 
and  that  John  I.  Gaston,  Robert  Van  Renselaer,  Jared  N. 
Stebbins,  William  Packer  and  Henry  Ibbotson  are  now,  or 
were  lately,  directors,  and  were  elected  on  the  29th  of  March, 
1842.  That  in  the  fall  of  1839  the  company  commenced  pre- 
parations, to  erect  buildings  ;  and  that  they  have  .obtained  the 
title  to  about  three  acres  of  land,  and  erected  thereon  a  stone 
factory  100  feet  long  and  36  wide,  and  three  stories  high,  a 
stone  foundry  and  stone  machine  shop,  at  a  cost,  with  wheels, 
castings  and  gearings,  of  upwards  of  $10,000;  and  have  pur- 
chased a  valuable  patent  right  for  manufacturing  screws,  and 
costly  machinery,  at  an  expense  of  upwards  of  $150,000;  all 
which  property,  real  and  personal,  except  about  $5000,  was 
in  the  possession  of  the  company  and  owned  by  them,  till 
about  October  loth,  1842,  when  it  was  taken  possession  of 
by  Luther  Loomis  and  Samuel  P.  Lyman,  under  a  pretended 
conveyance  and  bill  of  sale  to  them  by  the  company,  or  some  of 
the  directors  thereof.  That  the  complainant  sued  the  company 
at  the  term  of  June,  1843,  of  the  Circuit  Court  of  Somerset, 
and  recovered  judgment  against  them  for  $840.81  debt,  and 


CASES  IN  CHANCERY. 


Smith  v.  Loomis  et  al. 


$32.10  costs,  and  caused  execution  to  be  issued  against  the  goods 
and  lands  of  the  company,  and  placed  in  the  hands  of  the  sheriff 
of  Somerset,  on  the  29th  of  August,  1843>  by  virtue  of  which 
the  sheriff  levied  on  all  the  real  and  personal  estate  above  men- 
tioned, as  belonging  to  the  company,  subject  to  all  prior  legal 
claims. 

That  previous  to  the  completion  of  the  said  improvements 
the  company  became  embarrassed,  and  Loomis  and  Lyman, 
being  aware  of  it,  and  desiring  to  get  possession  and  control  of 
the  works,  in  August  or  September,  1842,  made  a  proposal  to 
Ibbotson  and  to  some  persons  unknown  to  the  complainant,  that 
if  they  would  sell  to  them,  Loomis  and  Lyman,  the  property 
of  the  company  for  a  nominal  value,  or  allow  them  to  become 
the  purchasers  thereof  at  a  public  sale,  they  would  hold  the 
property  in  trust,  one-half  for  themselves,  Loomis  and  Lyman, 
and  the  other  half  for  the  individuals  to  whom  said  offer  was 
made. 

That  Gaston,  Stebbins,  Van  Renselaer  and  Packer,  in  vio- 
lation of  their  trust  as  directors,  did,  without  any  resolution 
of  the  board  of  directors,  and  without  any  meeting  of  the  board 
for  the  purpose,  and  to  defraud  the  complainant  and  other  cred- 
itors of  the  company,  and  a  portion  of  the  stockholders  of  the 
company,  on  or  about  the  3d  of  October,  1842,  fraudulently, 
by  articles  of  that  date,  made  and  executed  between  the  said 
John  I.  Gaston,  Stebbins,  Van  Renselaer  and  Packer,  of  the 
first  part,  and  Luther  Loomis  and  Samuel  P.  Lyman,  of  the 
second  part,  on  a  pretended  consideration  of  $3000,  acknowl- 
edged in  said  articles  to  have  been  received  by  the  said  parties 
of  the  first  part  in  behalf  of  said  company,  sell  and  transfer  to 
Loomis  and  Lyman  the  said  letters  patent  and  all  the  personal 
property  of  the  company  ;  and  that  thereupon,  Gaston,  Stebbins, 
Van  Renselaer  and  Packer,  or  some  of  them,  delivered  the  said 
property  to  Loomis  and  Lyman,  who  are  now  in  the  wrongful 
possession  thereof  as  the  pretended  owners.  That  said  sale  was 
made  without  any  authority,  and  in  violation  of  their  duty  as 
directors,  on  a  mere  pretended  consideration,  which  Loomis  and 
Lyman  never  paid  or  secured  a  cent  of;  and  that  it  was  the 
understanding  between  the  parties  that  they  were  not  to  pay 
any  part  of  it,  but  that  they  should  hold  the  property  in  trust, 


JUNE  TERM,  1845.  63 

Smith  v.  Loomia  ct  al. 

one-half  for  themselves,  and  the  other  half  for  the  said  parties 
of  the  first  part,  and  some  other  individuals  connected  with  them 
in  the  attempt  to  get  the  property  out  of  the  control  of  the  said 
"  The  Somerville  Manufacturing  Company,"  without  paying 
any  consideration  for  it.  That,  in  pursuance  of  this  design,  at 
an  irregular  meeting  of  some  of  the  directors  at  the  Merchants' 
Hotel,  New  York,  on  the  15th  of  October,  1842,  at  which 
meeting  were  present  Gaston,  Van  Renselaer,  Packer,  and  Henry 
Ibbotson,  it  was  resolved,  by  the  votes  of  Gaston,  Van  Rense- 
laer, and  Packer,  that  all  the  real  estate  of  the  company  should 
be  conveyed  to  the  said  Loomis  and  Lyman  ;  and  Gaston  was, 
by  the  said  resolution,  directed,  as  president,  to  execute  a  deed 
thereof  accordingly  ;  which  said  resolution  was  voted  for  by  all 
the  said  directors  present,  except  Ibbotson,  who  protested  against 
it  as  a  fraud  on  the  creditors  and  stockholders,  and  a  violation 
of  the  trust  reposed  in  them  as  directors,  and  because  all  the 
directors  had  not  been  notified  of  the  meeting,  and  were  not 
all  present.  The  bill  charges  that  said  meeting  was  not  a  lawful 
meeting  of  the  board  of  directors,  and  was  incapable  of  doing 
any  valid  corporate  act ;  that  no  sura  was  stated  in  the  reso- 
lution as  a  consideration,  but  that  it  was  stated  in  the  resolu- 
tion that  the  conveyance  should  be  made  according  to  the 
terms  of  the  arrangement  theretofore  made  with  Loomis  and 
Lyman  ;  but  the  complainant  charges  that  no  terms  of  arrange- 
ment had  ever  been  made  between  said  directors  and  Loomis 
and  Lyman,  but  that  the  terms  there  referred  to  were  the  same 
terms  before  stated  to  have  been  proposed  by  Loomis  and 
Lyman  to  Ibbotson  and  other  persons  unknown  to  complainant. 
That,  in  consequence  of  said  pretended  resolution,  and  without 
any  other  authority,  Gaston,  as  president  of  the  company,  made, 
executed,  and  delivered  to  Loomis  and  Lyman  a  deed  for  all 
the  real  estate  of  the  company,  dated  October  18th,  1842,  and 
acknowledged  the  same  day.  That  no  money  was  paid  or  se- 
cured, or  intended  to  be  ;  but  that  the  conveyance  was  made  to, 
and  that  the  estate  thereby  granted  is  now  held  by  Loomis  and 
Lyman,  under  some  understanding  between  them  and  Gaston, 
Van  Renselaer,  Stebbins,  and  Packer,  or  some  of  them,  that 
the  property  shall  be  held  in  trust  for  them,  and  for  their  benefit, 
and  without  any  agreement,  understanding,  or  intention  that 


64  CASES  IN  CHANCERY. 

Smith  v.  Loomis  et  al. 

the  company  or  its  creditors,  is  or  are  ever  to  be  paid  anything 
for  the  property,  or  on  account  of  their  debts. 

That,  at  a  meeting  of  only  three  of  the  directors,  on  the  4th 
of  October,  1842,  at  which  Gaston,  Packer,  and  Stebbins  were 
present,  it  was  resolved,  under  pretence  of  securing  money  to 
be  loaned  by  Joshua  Doughty  to  the  company,  that  Gaston,  the 
president,  should  execute  a  bond  to  Doughty,  conditioned  for 
the  payment  of  $1176,  to  be  loaned  by  Doughty  to  the 
company;  to  pay  Gaston  $860,  which  he  pretended  he  had 
loaned  to  the  company,  and  to  pay  two  notes  said  to  have 
been  given  to  Packer,  and  $100  of  sundry  small  debts  pre- 
tended to  be  owing  by  the  company  ;  and  a  warrant  of  attor- 
ney to  confess  judgment  on  said  bond.  That  Gaston,  by  virtue 
of  said  resolution  of  a  mere  quorum,  passed  by  the  votes  of 
Gaston  and  Packer,  the  persons  to  be  benefited  by  the  judgment, 
did  execute  such  bond  and  warrant,  and  that,  on  the  same  day, 
judgment  was  entered  thereon,  in  favor  of  Doughty  against  the 
company.  That  Doughty  had  not,  nor  has  he  since,  paid  a  cent 
to  the  company,  or  to  any  other  person  for  them,  but  that,  to 
give  some  color  to  the  transaction,  and  as  a  pretext  for  the  affi- 
davit of  indebtedness  he  was  obliged  to  make,  Doughty,  when 
the  bond  and  warrant  were  delivered  to  him,  made  his  note  to 
the  company  for  $1076,  dated  the  same  day,  and  delivered  it  to 
Gaston,  and  immediately  after  making  his  affidavit,  received  back 
the  note,  and  destroyed  it,  or  put  it  in  his  pocket,  remarking 
that  he  was  not  going  to  have  that  note  out  against  him,  or  words 
to  that  effect.  That  the  company  were  not  then  indebted  to 
Gaston  in  any  way,  but  that  Gaston  was  then  largely  indebted 
to  the  company  ;  that  he  was  a  subscriber  for  one  hundred  shares 
of  the  stock  of  the  company,  the  par  value  of  which  was  $10,000  ; 
that  the  whole  par  value  had  been  called  in,  and  that  he 
had  only  paid  in  on  said  stock  from  $500  to  $800 ;  that  the 
obtaining  the  said  judgment  was  a  contrivance  of  his,  to  get 
back  the  money  he  had  paid  on  the  stock  subscribed  for  by 
him  ;  that,  notwithstanding  Loomis  and  Lyman  were  informed 
of  all  the  circumstances  under  which  the  said  judgment  was 
confessed,  and  knew  it  was  fraudulent,  and  Lyraan  admitted 
it  was  so,  and  that  it  ought  to  be  set  aside,  yet  that  Loomis  and 
Lyman  procured  an  assignment  of  it  to  them  from  Doughty. 


JUNE  TERM,  1845.  65 


Smith  v.  Loomis  et  al. 


That  a  fi.  fa.  has  been  issued  on  said  judgment,  and  that  the 
sheriff  of  Somerset,  by  virtue  thereof,  has  levied  on  all  the  real 
estate  of  the  company,  and  also  on  all  the  personal  property  of 
the  company  now  in  the  possession  of'said  Loomis  and  Lyman, 
as  hereinbefore  stated,  and  has  advertised  the  same  for  sale  on 
the  9th  of  September,  1844. 

The  bill  charges  not  only  that  the  said  sales  of  all  the  real 
and  personal  property  of  the  company  to  Loomis  and  Lyman 
are  fraudulent  and  in  breach  of  trust,  but  that  the  said  directors 
had  no  authority  to  sell  all  the  real  and  personal  estate  of  the 
company,  or  so  much  thereof  as  to  prevent  the  company  from 
carrying  on  the  business  for  which  it  was  incorporated.  That 
all  the  property  of  the  company  is  included  in  the  said  transfers 
to  Loomis  and  Lyman,  and  that  if  the  said  transfers  are  to  pre- 
vail as  valid,  the  complainant  must  lose  the  whole  of  his  judg- 
ment. The  bill  then  states  several  judgments  obtained  against 
the  company  ;  one  by  the  State  Bank  at  Elizabeth,  October  4th, 
1842,  for  $672.21 ;  one  by  Henry  Ibbotson,  October  24th,  1842, 
for  $595 ;  one  by  Ovrick,  Grubbs  and  Parker,  November  8th, 
1842,  for  $345;  one  by  B.  Hunt,  June  20th,  1843,  for  $387; 
on  which  three  last-mentioned  judgments  executions  were  issued 
to  the  sheriff  of  Somerset. 

The  bill  charges  an  arrangement  between  Gaston,  Van  Ren- 
selaer,  Stebbins,  Packer,  Loomis  and  Lyman,  and  Doughty,  or 
some  of  them,  that  the  said  property  so  advertised  to  be  sold 
as  the  property  of  the  company,  by  virtue  of  the  Doughty  exe- 
cution, should,  at  the  sale,  be  bought  by  Loomis  and  Lyrnan  in 
trust,  and  under  the  agreement  and  arrangement  under  which, 
as  before  stated,  the  conveyance  of  the  property  was  made  to 
them  ;  that  they,  knowing  the  conveyance  to  be  fraudulent  and 
void,  have  contrived  this  method  of  having  the  property  sold  by 
virtue  of  the  judgment  and  execution  of  Doughty,  themselves 
to  become  the  purchasers,  well  knowing  that  no  person  will  bid 
for  the  property  while  they  set  up  a  claim  as  owners  thereof,  by 
virtue  of  a  conveyance  prior  in  point  of  time  to  the  said  judg- 
ment;  all  which  the  complainant  charges  as  fraudulent — as 
being  an  attempt  to  purchase  what  they  already  claim  to  be 
their  own  property,  at  their  own  sale.  That  Loomis  and  Ly- 


66  CASES  IN  CHANCERY. 

Smith  v.  Loomis  et  al. 

man,  in  preparing  their  plan,  have  already  publicly  declared 
that  they  are  the  owners  of  the  property,  and  that  no  purchaser 
at  the  sheriff's  sale  can  reap  any  benefit  from  his  purchase. 

The  Somerville  Manufacturing  Company,  John  I.  Gaston, 
Robert  Van  Renselaer,  Jared  N.  Stebbins,  William  Packer, 
Luther  Loomis,  Samuel  P.  Lyman,  Henry  Ibbotson,  Francis 
P.  Schoals,  Joshua  Doughty,  and  the  other  judgment  creditors, 
and  David  T.  Talmage,  sheriff,  are  made  defendants.  The 
prayer  of  the  bill  is,  that  the  bill  of  sale  of  the  personal  estate, 
and  the  conveyance  of  the  real  estate,  to  Loomis  and  Lyman, 
may  be  set  aside  ;  that  all  the  property  of  the  company  received 
or  obtained  by  Loomis  and  Lyman  by  virtue  of  the  said  pre- 
tended purchase,  be  given  up  to  the  company,  for  the  benefit  of 
the  company  and  its  creditors ;  that  Loomis  and  Lyman  may 
be  charged  with  the  rents,  issues  and  profits  of  the  property,  and 
for  the  use  and  occupation  thereof,  and  may  be  decreed  to  pay 
the  same  to  the  company,  for  the  benefit  of  the  creditors  of  the 
company,  or  may  be  decreed  to  pay  the  complainant  the 
amount  of  his  said  judgment  against  the  company  ;  that  the 
trusts  under  the  said  act  of  incorporation  may  be  carried  into 
execution  ;  that  the  judgment  and  execution  in  favor  of  Doughty 
may  be  declared  fraudulent  and  void  as  against  the  company,  or 
as  against  the  complainant's  said  judgment ;  and  that  Doughty, 
Loornis  and  Lyman,  and  the  sheriff,  may  be  enjoined  from  all 
further  proceedings  on  the  judgment  and  execution  in  favor  of 
Doughty,  against  the  company. 

An  injunction  was  granted,  according  to  the  prayer  of  the 
bill. 

The  defendants  Luther  Loomis  and  Samuel  P.  Lyman,  and 
the  defendant  Joshua  Doughty,  have  answered  ;  the  other  de- 
fendants have  not  answered.  The  answer  of  Loomis  and  Lyman 
is  of  great  length  and  particularity,  but  as  the  contents  and 
character  of  the  answers  appear  sufficiently  in  the  opinion  of  the 
court,  an  abstract  of  them  is  not  here  given. 

The  cause  was  heard  on  a  motion  to  dissolve  the  injunction. 

S.  P.  Lyman  and  G.  D.  Wall,  for  the  motion. 

i 

JB.  Williamson  and  Reading,  contra. 


•JUNE  TERM,  1845.  67 

Smith  v.  Loorais  et  al. 

THE  CHANCELLOR.  On  the  1st  of  March,  1837,  "The 
Somerville  Manufacturing  Company  "  was  incorporated.  The 
charter  provides  for  the  election  of  five  directors,  who  should  be 
stockholders,  and  should  hold  their  office  for  one  year  and  till 
others  should  be  elected,  and  that  the  directors  should  choose  a 
president  out  of  their  own  number.  On  the  29th  of  March, 
1842,  John  I.  Guston,  Robert  Van  Renselaer,  Jared  N.  Steb- 
bins,  William  Packer  and  Henry  Ibbotson  were  elected  directors, 
and  no  others  have  been  since  elected  directors.  The  company 
obtained  the  title  to  about  three  acres  of  land,  and  erected 
buildings  thereon,  at  a  cost,  with  wheels,  castings  and  gearings, 
of  upwards  of  ten  thousand  dollars,  as  charged  in  the  bill,  of 
upwards  of  five  thousand  dollars,  as  stated  in  the  answer  of 
Loomis  and  Lyman,  two  of  the  defendants;  and  bought  cer- 
tain patent  rights  and  a  quantity  of  machinery,  at  an  expense 
of  $150,000,  paid  for  in  stock  of  the  company;  which  pro- 
perty was  in  the  possession  of  the  company  in  September, 
1842.  On  or  about  the  first  of  October,  1842,  Van  Renselaer 
and  Stebbins,  two  of  the  directors,  and  Loomis  and  Lyman, 
and  two  other  stockholders,  entered  into  an  agreement  in 
writing,  dated  October  3d,  1842,  purporting  to  be  a  memoran- 
dum of  an  agreement  between  Loomis  and  Lyman,  two  of  the 
stockholders,  of  the  one  part,  and  the  said  Stebbins,  Ibbotson, 
Van  Renselaer,  and  two  other  stockholders,  of  the  other  part, 
to  be  binding  on  those  only  of  the  said  persons  named  who 
should  sign  it,  reciting  that  the  affairs  of  the  company  had 
been  long  so  embarrassed  that  its  property  could  not  be  made 
productive,  and  must  be  sold  to  meet  its  liabilities  ;  that  the  par- 
ties to  the  memorandum  are  holders  of  a  large  amount  of  the 
stock  of  the  company,  and  have  expended  large  sums  to  make 
its  property  productive  ;  that  it  had  become  necessary  that  fur- 
ther sums  be  expended  to  save  what  had  been  laid  out  from  total 
loss  ;  that  it  was  the  intention  of  the  parties  to  the  memoran- 
dum to  afford  an  opportunity  to  other  parties  who  claim  to  have 
an  equitable  interest  in  the  property,  if  they  should  wish  to  pro- 
tect such  interest,  to  make  advances,  pro  raid,  which  should  be 
equal  to  the  expenditures  made  by  the  parties  named  in  said 
memorandum,  in  order  that  they,  on  making  such  advances, 
might  share  with  the  parties  named  in  the  memorandum,  in 


68  CASES  IN  CHANCERY. 

Smith  v.  Loomis  et  al. 

the  benefits  or  disadvantages  to  accrue  from  what  had  been  un- 
dertaken by  the  parties  named  in  the  memorandum  ;  and  pro- 
viding that  it  was  therefore  agreed  by  and  between  the  parties 
to  the  memorandum  as  follows: 

1st.  At  any  sale  of  said  property  which  might  take  place 
under  any  execution  or  decree  against  it,  or  at  a  private  sale, 
assignment  or  transfer  by  the  managers  of  the  company,  the 
said  property  of  every  description,  should  be  bought  by  Loomis 
and  Lyman,  for  the  parties  who  should  subscribe  the  memo- 
randum, at  the  lowest  price  and  on  the  most  advantageous 
terms  possible,  provided  the  price  of  the  whole  of  the  property 
should  not  exceed  the  sum  which  Loomis  and  Lyman  might 
be  willing  and  ready  to  pay  for  the  same ;  which  property, 
when  purchased,  should  be  held  by  them  for  the  benefit  of  the 
said  Loomis  and  Lyman,  and  the  others  who  should  become 
parties  to  the  memorandum  by  signing  their  names  thereto,  in 
the  following  proportions,  viz.,  Loomis  and  Lyman  should  have 
six-twelfths,  and  the  other  parties  thereto  also  six-twelfths  ; 
that  each  one  should  pay,  pro  raid,  for  the  purchase  of  the  pro- 
perty, according  to  his  respective  interest  in  the  same,  to  be 
thereafter  declared. 

2d.  That  immediately  after  the  execution  of  the  memoran- 
dum, the  parties  should  proceed  to  inventory  all  the  effects  of 
the  company,  and  have  the  same  appraised  by  competent  and 
disinterested  persons,  so  that  the  value  thereof  might  be  known 
to  the  parties. 

3d.  That  as  soon  as  the  property  and  effects  could  be  obtained, 
and  the  title  thereto  perfected,  for  the  benefit  of  the  parties  to 
the  memorandum,  a  lease  for  the  requisite  water-power  should 
be  obtained  from  the  Somerville  Water-power  Company,  on  the 
usual  terms,  at  the  rate  of  four  dollars  per  annum  for  each 
square  inch. 

4th.  That  the  title  to  the  property,  under  the  sale  contem- 
plated, should  be  acquired  as  soon  as  the  same  could  be  done 
consistent  with  the  interest  of  the  said  parties,  and  without 
doing  violence  to  the  rights  of  others. 

5th.  That  simultaneously  with  the  steps  therein  agreed 
to  be  taken,  steps  should  be  taken  to  clean  up  and  put 
in  order  all  the  machinery  and  effects  of  the  company,  and 


JUNE  TERM,  1845.  69 

Smith  v.  Loomis  et  al. 

prepare  the  same  for  use,  as  soon  as  the  circumstances  should 
permit. 

6th.  That,  as  soon  as  said  purchases  should  be  made,  and  the 
value  of  the  same  ascertained,  articles  of  agreement  more  full, 
and  defining  the  rights  of  the  parties  more  particularly,  should 
be  made  out  and  entered  into  between  the  parties,  but  that,  until 
then,  the  said  memorandum  should  be  binding. 

This  memorandum  was,  or  purported  to  be  signed  by  or  in 
behalf  of  the  directors  and  stockholders  among  whom  the  arrange- 
lent  was  concluded  on,  except  Ibbotson,  a  director  and  stock- 
holder, who,  it  appears,  refused  to  sign  it. 

On  the  3d  of  October,  1842,  another  writing  was  made,  the 
substance  of  which  is  as  follows  :  "  Agreement  made,  &c.,  Octo- 
ber 3d,  1842,  between  J.  N.  Stebbins,  Henry  Ibbotson,  Robert 
Van  Renselaer,  William  Packer,  and  John  I.  Gaston,  managers 
or  directors  of  the  Somerville  Manufacturing  Company,  duly 
elected  under  the  charter  of  the  said  company,  of  the  first  part, 
and  Luther  Loomis  and  Samuel  P.  Lyman,  of  the  second  part, 
witnesseth,  that  the  party  of  the  first  part,  for  $3000  in  hand 
paid  by  the  parties  of  the  second  part,  the  receipt  whereof  is 
acknowledged  in  behalf  of  the  company,  have  sold,  &c.,  all 
and  singular  the  letters  patent,  &c.,  and  all  and  singular  the 
right,  title,  and  interest  of  the  company,  and  of  the  parties  of  the 
first  part,  in  the  property  and  effects  of  the  company  described  in 
a  deed,  a  copy  of  which  is  annexed  to  said  agreement,  consisting 
of  machinery,  &c.,  chattels,  and  effects,  of  whatever  name  or  na- 
ture, belonging  to  the  company,  to  have  and  to  hold  to  the  said 
Luther  Loomis  and  Samuel  P.  Lyman,  free  and  clear  of  all  encum- 
brances whatever.  Given  under  the  hands  and  seals  of  the  parties 
of  the  first  part,  the  day  and  year  first  above  written,  and  to  take 
effect  as  soon  as  a  majority  of  the  above  named  persons  have  here- 
unto subscribed  their  respective  names."  This  writing  is  executed 
under  the  individual  hands  and  seals  of  four  of  the  five  persons 
therein  named,  as  parties  thereto  of  the  first  part.  Ibbotson,  the 
other  person  named  as  of  the  first  part,  did  not  execute  it. 

The  deed  annexed  to  the  said  writing,  and  referred  to  in  it,  is 
a  deed  from  the  Poughkeepsie  Screw  Manufacturing  Company 
to  the  Somerville  Manufacturing  Company,  of  certain  patents  and 
machinery,  steam  engines,  materials,  lathes,  tools,  and  chattels. 


70  CASES  IN  CHANCERY. 


Smith  v.  Loomis  et  al. 


On  or  before  the  date  of  the  said  writing  under  the  hands  and 
seals  of  the  said  Van  Renselaer,  Stebbins,  Packer,  and  Gaston, 
the  property  and  effects  mentioned  therein  were  delivered  by 
them,  or  some  or  one  of  them,  to  Loomis  and  Lyman  ;  and  they, 
in  their  answer,  claim  to  hold  the  same  under  that  writing. 
The  bill  charges  that  no  part  of  the  consideration  mentioned  in 
said  agreement  was  ever  paid  by  Loomis  and  Lyman,  or  secured 
in  any  way,  and  that  it  was  the  understanding  between  the  par- 
ties to  the  said  writing,  that  they  were  not  to  pay  any  part  of  it, 
but  that  they  should  hold  the  property  in  trust,  one-half  for 
themselves,  and  one-half  for  the  said  parties  of  the  first  part  and 
some  other  individuals  connected  with  them. 

On  the  4th  of  October,  1842,  a  judgment  was  confessed,  or 
entered  by  way  of  confession,  against  the  company,  in  favor 
of  Joshua  Doughty,  for  $1176,  and  afi.fa.  was  issued  thereon 
and  levied  on  all  the  property  of  the  company,  real  and  personal. 
On  the  same  day  a  judgment  was  confessed  against  the  company 
to  the  State  Bank  at  Elizabeth,  for  $672.21. 

On  the  15th  of  October,  1842,  at  a  meeting  of  some  of  the 
directors,  in  the  city  of  New  York,  at  which  meeting  Gaston, 
Van  Renselaer,  Packer,  and  Ibbotsou  were  present,  it  was  re- 
solved, by  the  votes  of  Gaston,  Van  Renselaer,  and  Packer,  that 
all  the  real  estate  of  the  company  be  conveyed  to  Loomis  and 
Lyman,  and  that  Gaston,  the  president,  execute  a  deed  thereof; 
Ibbotson  protesting  against  said  resolution  ;  and  Gaston,  on  or 
about  tire  18th  of  October,  1842,  executed,  acknowledged,  and 
delivered  to  Loomis  and  Lyman  a  deed  for  all  the  real  estate  of 
the  company,  for  a  consideration  therein  mentioned,  of  $3000, 
the  receipt  whereof  is,  in  the  deed,  acknowledged,  subject  to  two 
certain  liens  by  judgment  and  execution  against  the  company- 
one  in  favor  of  Joshua  Doughty,  and  one  in  favor  of  the  State 
Bank  at  Elizabeth. 

The  bill  charges  that,  though  $3000  was  mentioned  in 
said  deed  as  the  consideration,  yet  that  no  money  was  paid  or 
secured,  or  intended  to  be ;  but  that  the  conveyance  was  made 
to,  and  the  estate  thereby  granted  is  now  held  by  Loomis  and 
Lyman,  under  some  understanding  between  them  and  Gaston, 
Van  Renselaer,  Stebbins,  and  Packer,  or  some  of  them,  that 


JUNE  TERM,  1845.  71 

Smith  v.  Loomis  et  al. 

the  said  property  shall  be  held  in  trust  for  them  and  for  their 
benefit,  and  without  any  agreement,  understanding  or  intention 
that,  the  company  is  ever  to  be  paid  anything  for  the  property, 
or  its  creditors  anything  o-n  account  of  their  debts. 

The  bill  states  particularly  the  circumstances  by  reason  of 
which  the  complainant  insists  that  the  judgment  confessed  by 
the  company  to  Doughty,  and  assigned  by  him  to  Loomis  and 
Lyman,  is  fraudulent;  and  the  answers  of  Loomis  and  Lymau 
and  Doughty  give  their  account  of  that  judgment,  and  claim  that 
it  is  good.  But  as  the  conclusion  I  have  come  to  on  the  present 
motion  to  dissolve  the  injunction,  is  not  founded  on  the  validity  or 
invalidity  of  that  judgment,  I  have  not  t-hought  fit  to  state  fully 
the  facts  in  reference  to  it.  The  decision  to  be  made  on  this 
motion,  is  founded  on  the  account  given  in  the  answer  of 
Loomis  and  Lyman  of  the  circumstances  under  which  they 
claim  to  be  the  owners  of  all  the  property  of  the  company,  and 
on  the  manner  in  which  the  answer  gives  that  account,  and  on 
the  nature  of  the  arrangement  made  in  reference  to  the  prop- 
erty by  and  between  the  parties  to  the  memorandum  before  al- 
luded to.  [The  Chancellor  here  stated  the  charges  in  the  bill 
as  to  the  nature  of  the  arrangement.] 

Let  us  see  what  answer  Loomis  and  Lyman  give  to  these 
charges.  They  admit  that  previous  to  the  completion  of  their 
improvements,  the  company  became  embarrassed,  &c.,  but 
deny  that  they,  these  defendants,  "  being  aware,  &c.,  (as  in 
the  bill,)  and  being  desirous,  &c.,  (as  in  the  bill,)  and  sup- 
posing, &c.,  (as  in  the  bill,)  would  hold  said  property  in 
trust,  the  one-half  for  themselves,  and  the  other  half  for  the 
other  individuals  to  whom  the  said  offer  was  made,"  follow- 
ing literally  the  language  of  the  bill,  and  departing  from  the 
well-settled  rule  of  answering,  that  the  substance  of  a  charge 
must  be  answered  or  denied,  and  that  a  mere  literal  answer  is 
insufficient;  a  departure  which  occurs  in  several  portions  of  the 
answer.  They  proceed  to  say  that  the  equitable  interest  they 
held  in  the  property  of  the  company,  was  equal  to  the  value  of 
half  the  said  property,  as  it  was  then  situated.  They  then  state 
that  the  company  was  embarrassed  and  had  no  water  power, 
iior  ieuse  for  any,  nor  any  power  to  propel  machinery,  and  was 
largely  indebted  for  work  and  materials ;  that  the  efforts  which 


72  CASES   IN   CHANCERY. 

Smith  v.  Loomia  et  al. 

had  been  made  to  carry  into  effect  the  objects  of  the  charter  had 
entirely  ceased,  and  the  property  was  going  to  ruin  ;  that  the 
company  had  no  property  or  means  whatever,  except  the  prop- 
erty aforesaid,  to  pay  its  debts,  or  complete  the  buildings,  or 
obtain  water,  or  put  the  works  in  operation  ;  that  though  other 
names  appear  on  the  books  as  stockholders,  yet  that,  in  fact  and 
in  equity,  the  interest  in  the  property  of  the  company  belonged 
to  them,Loomis  and  Lyman,  and  Van  Renselaer  and  the  said  two 
other  stockholders,  not  naming  Ibbotson,and  that  all  other  parties 
nominally  interested  in  the  company,  except  Stebbins,  who  acted 
as  agent  of  the  company,  had  long  since,  to  all  intents  and  pur- 
poses, abandoned  it  and  neglected  and  refused  to  do  anything-, 
or  make  advances  for  completing  the  building,  or  procuring 
water  power,  or  putting  the  works  in  operation,  or  paying  for 
what  had  already  been  done  towards  either  of  these  objects. 
That  they  have  no  knowledge,  information'  or  belief  that  any 
of  the  nominal  or  pretended  stockholders,  except  the  parties  last 
above  mentioned,  ever  paid  one  cent  for  or  on  account  of  the  com- 
pany since  it  was  chartered,  organized  and  established  at  Somer- 
ville,  towards  any  of  the  objects  aforesaid  ;  that  they,  Loorais  and 
Lyman,  Ibbotson, Stebbins,  Van  Renselaer  and  the  said  two  other 
stockholders,  the  parties,  as  they  say,  interested  in  and  claiming 
to  be  the  owners,*  in  fact  and  in  equity,  of  the  whole  of  the  stock 
and  property  of  the  company  as  aforesaid,  on  the  1st  of  October, 
1842,  concluded  a  general  arrangement  for  the  purpose  of  pay- 
ing the  debts  then  owing  by  the  company,  for  the  purpose  of 
procuring  a  water  power,  and  for  the  purpose  of  completing  the 
buildings  and  machinery  and  putting  the  same  in  operation, 
and  rendering  its  effects  valuable  to  those  who  were  the  owners 
thereof,  after  a  full  consultation  among  themselves,  and  with 
those  who  were  the  creditors  of  said  company.  [How  is  it 
that  the  word  "  the,"  before  "  creditors,"  is  introduced  in  the  last 
sentence ;  it  is  a  word  of  great  force  in  the  connection  in  which 
it  stands,  and  if  they  mean  to  say  only  "  with  creditors  of  the 
company,"  who  were  those  creditors ?J 

They  further  say  that  as  part  of  the  arrangement,  it  was 
agreed  by  the  parties  aforesaid,  that  the  $3000  consideration 
uioney  should  be  paid  and  appl/ed  directly  on  account  of 
thu  company  to  the  creditors  thereof,  and  that  they  should  pay, 


JUNE  TERM,  1845.  73 


Smith  v.  Loomis  et  al. 


out  of  the  net  earnings  of  the  six-twelfths  so  held  by  them  in 
trust  for  said  Stebbins,  Van  Renselaer  and  others  concerned  in 
said  arrangement,  after  paying  the  costs  of  completing  and  put- 
ting the  works  in  operation,  a  further  sum  sufficient  to  pay  off 
and  satisfy  the  remaining  debts  of  the  company,  and  that  they, 
Loomis  and  Lyman,  should  put  the  machinery  in  operation  and 
make  it  productive  as  soon  as  circumstances  would  permit ; 
that  pursuant  to  said  arrangement  and  the  conveyances  and 
agreements  aforesaid,  the  property  was  delivered  to  them,  and 
they  took  possession  thereof  on  the  1st  of  October,  1842,  and 
have  held  it  ever  since. 

They  then  say  that  in  pursuance  of  said  arrangements  they 
have  expended,  in  putting  up  the  buildings,  procuring  water- 
power  and  putting  the  machinery  in  operation,  upwards  of 
$12,000;  that  at  the  time  they  bought  the  property  and  made 
the  agreements  and  arrangements  aforesaid,  situated  as  it  was, 
and  without  the  right  to  a  water-power,  had  it  been  sold  under 
execution,  or  at  any  absolute  sale,  unaccompanied  with  any 
arrangement  for  fitting  it  up  and  using  it  in  connection  with 
water-power,  the  property  would  not  have  brought  enough  to 
pay  the  debts  of  the  company  ;  and  that  they  knew  of  no  other 
arrangement  which  it  was  in  their  power  to  make,  whereby  so 
much  could  be  realized,  either  for  the  creditors  or  the  stock- 
holders, as  by  the  arrangement  and  agreement  set  forth.  They 
deny  that  the  consideration  of  §3000  was  a  pretended  consid- 
eration, and  that  it  was  the  understanding  that  they  were  not  to 
pay  it;  but  aver  that  the  said  consideration  was  bonajide,  and 
that  it  was  expressly  agreed  that  these  defendants  should  pay 
the  same  and  every  part  thereof,  "  as  in  said  answer  before  set 
forth." 

It  is  not  alleged  in  any  previous  or  subsequent  part  of  the 
answer  that  they  ever  paid,  or  secured,  or  promised  or  intended 
to  pay  the  consideration,  or  any  part  of  it,  in  the  way  consider- 
ation money  is  usually  paid  or  secured  ;  and  yet  the  frame  of 
this  clause  of  the  answer  looks  very  much  as  if  they  would 
have  it  understood  as  an  averment  that  they  were  to  pay  the 
consideration  in  the  usual  way. 

They  then  go  on  and  aver  that  the  prominent  objects  the 
managers  had  in  view  were,  to  realize  sufficient  to  pay  the 

VOL.  I.  E 


74  CASES  IN  CHANCERY. 

Smith  v.  Loomis  et  al. 

debts  of  the  company,  to  put  the  works  in  operation,  and  to 
save  the  property  from  the  sacrifices  which,  they  say,  would 
have  been  unavoidably  made  without  the  arrangement  which 
they  did  make,  "  as  herein  before  set  forth."  How  these  two 
last  prominent  objects  might  be  promoted  by  the  arrangement, 
we  may  in  some  measure  comprehend  ;  but  how  the  other  ob- 
ject stated  as  prominent,  that  of  realizing  sufficient  to  pay  the 
debts  of  the  company,  was  to  be  attained  by  the  arrangement, 
it  is  difficult  to  perceive.  It  is  easy  to  see  that  there  is  nothing 
in  all  this  opposed  to  the  truth  of  the  charge  in  the  bill,  that  no 
part  of  the  said  consideration  money  was  ever  paid  or  secured 
to  the  company,  or  intended  to  be,  and  that  no  part  of  it  has 
been  or  was  intended  to  be  paid  to  the  creditors  of  the  company. 

There  is  one  part  of  the  answer  which  seems  to  approach 
very  nearly  to  an  answer  to  the  charge  ;  but  on  close  examina- 
tion, it  will  be  found  to  break  the  promise  to  the  hope.  It  is  that 
part  which  says,  "  That  as  part  of  the  arrangement  aforesaid, 
it  was  agreed  by  the  parties  aforesaid,  that  the  said  $3000, 
the  consideration  for  the  sale  of  the  said  property,  mentioned 
and  set  forth  in  the  said  agreement,  and  acknowledged  to  have 
been,  received  from  the  said  defendants  by  the  managers,  should 
be  paid  and  applied  directly  on  account  of  the  said  company  to 
the  creditors ;  and  it  was  also  agreed  that  the  said  defendants 
should  pay,  out  of  the  net  earnings  of  the  said  six-twelfths  so 
held  in  trust  by  them  as  aforesaid  for  the  said  Van  Renselaer, 
Stebbins,  &c.,  (naming  the  others  interested  in  the  arrangement,) 
after  paying  the  costs  of  completing  and  putting  the  same  iu 
operation,  a  further  sum  sufficient  to  pay  off  and  satisfy  the 
remaining  debts  owing  by  the  company  ;  and  it  was  also  agreed 
that  the  said  defendants  should  put  the  said  machinery  into 
operation  and  make  the  same  productive  as  soon  as  circumstan- 
ces would  per.mit." 

It  is  evident  that  these  defendants  felt  the  force  of  the  charge 
and  the  importance  of  giving  it  an  answer.  Is  the  answer  such 
as  should  be  satisfactory  to  the  court?  I  think  not.  Was  the 
consideration  money,  or  any  part  of  it,  paid?  If  it  had  been, 
it  would  no  doubt  have  been  so  stated  in  the  answer;  for  they 
have  thought  it  worth  their  while  to  say  "that  it  was  acknow- 
ledged (that  is,  in  the  deed)  to  have  been  received  from  them 


JUNE  TERM,  1845.  75 


Smith  v.  Loomis  et  al. 


by  the  managers."  Was  it  secured  to  be  paid  ?  If  so,  was  any 
time  fixed  for  its  payment?  To  whom  was  it  to  be  paid  ?  No 
answer  is  given  to  any  of  these  inquiries.  But  it  is  said  it  war, 
agreed  by  the  parties  to  the  arrangement — themselves  being  par- 
ties to  it — that  it  should  be  paid.  How,  and  to  whom  ?  The 
answer  says  it  was  agreed  that  it  should  be  paid  and  applied 
directly  on  account  of  said  company  to  the  creditors.  By  whom 
was  it  to  be  so  paid  and  applied?  By  themselves?  The  answer 
does  not  say  so.  Was  it  to  be  to  any  particular  creditor,  or  to 
all  the  creditors  pro  raid  f  Again,  how  was  it  agreed  to  be 
paid.  What  evidence  is  there  of  an  agreement  to  pay  ?  No 
such  agreement  appears  in  any  of  the  writings.  The  memo- 
randum says  that  the  property,  when  purchased  by  them,  shall 
be  held  by  them  for  their  benefit  and  that  of  the  other  parties 
to  the  memorandum,  half  for  them  and  half  for  the  others,  and 
that  each  should  pay,  pro  raid,  for  the  purchase  of  the  prop- 
erty, according  to  his  respective  interest  in  the  same,  to  be  there- 
after declared.  To  whom  was  each  to  pay  his  share?  The 
answer  says  it  was  agreed  that  the  consideration  money  should 
be  paid  and  applied  directly  to  the  creditors.  Are  these  de- 
fendants, Loomis  and  Lyman,  or  any  or  either  of  the  parties  to 
the  memorandum,  personally  liable  to  the  creditors,  or  any  of 
them  ?  The  title  of  the  property  is  to  be  taken  out  of  the  com- 
pany, no  part  of  the  purchase  money  is  to  be  paid  to  the  com- 
pany, the  property  is  to  be  removed  from  the  reach  of  the  cred- 
itors, and,  at  the  same  time,  the  parties  to  the  memorandum  are 
not  to  be  personally  liable  to  any  creditor.  If  this  is  not  the 
arrangement,  the  company,  or  those  who  acted  for  it,  should 
have  put  in  their  answer  to  show  the  court  what  it  was.  Indeed, 
it  is  an  objection  to  the  dissolution  of  the  injunction,  that  the 
company,  or  those  who  acted  for  it,  have  not  answered,  for,  cer- 
tainly, t\\e*gravamen  of  the  bill  rests  partly  on  them.  If  this  is 
the  arrangement,  it  cannot  receive  the  sanction  of  this  court. 

There  is  another  rule  for  answering,  which,  as  it  seems  to 
me,  has  been  departed  from  in  this  answer.  It  is  this :  Where 
a  matter  is  charged  in  the  bill  which  must,  if  true,  be  withic 
the  knowledge  of  the  defendant,  the  substance  of  the  charge 
should  be  answered  directly,  not  evasively,  nor  by  way  of  nega- 
tive pregnant.  And  I  must  be  permitted  to  add,  that  where  the 


76  CASES  IN  CHANCERY. 

Smith  v.  Loomis  et  al. 

circumstances  charged  are  suspicious,  or  have  the  appearance  of 
collusion  and  fraud,  a  defendant  must  be  held  to  strict  rule  in 
answering. 

There  is  one  view  of  the  subject,  on  which,  if  it  be  the  true 
view,  it  might  be  thought  the  injunction  should  be  dissolved. 
I  am  not  satisfied  that  the  instrument  transferring,  or  purport- 
ing to  transfer  the  personal  property  of  the  company,  executed 
under  the  hands  and  seals  of  four  of  the  directors,  and  the  reso- 
lutions mentioned  in  the  answer,  as  afterwards  made  by  the 
managers,  or  some  of  them,  approving  the  transfer,  are  sufficient 
to  transfer  the  property  ;  and,  if  the  personal  property  still  be- 
longs to  the  company,  it  may  be  asked,  why  not  dissolve  the 
injunction  as  to  the  personal  property,  and  let  the  execution  at 
law  sell  it  as  the  property  of  the  company  ?  The  answer  is,  the 
party  moving  for  the  dissolution  do  not  ask  it  on  that  ground. 
They  claim  the  property  as  theirs.  It  may  be  said  that  the 
sale  enjoined  was  a  sale  about  to  be  made  on  a  judgment  at  law 
assigned  to  Loomis  and  Lyman.  The  answer  is,  if  they  ac- 
quired the  title  to  the  property,  and  then  bought  a  judgment  at 
law  which  was  a  lien  on  the  property,  they  relieve  the  property 
from  the  lien  of  the  judgment.  It  would  be  a  singular  proceed- 
ing to  sell  their  own  property  to  pay  a  judgment  of  which  they 
had  procured  an  assignment  to  themselves.  If -the  property  is 
theirs  already,  they  cannot  be  injured  by  an  injunction  against 
selling  it  under  the  judgment;  and  if  they  claim  the  property 
as  theirs,  and  as  not  subject  to  the  judgment,  is  it  likely  that 
any  person  besides  themselves  would  be  willing  to  bid  for  the 
property  and  pay  its  value,  at  a  sale  under  that  judgment,  and 
take  their  chance  of  recovering  it  or  its  value  from  Loomis  and 
Lyman,  in  opposition  to  their  assertion  and  claim  of  title  in 
them  prior  to  the  judgment?  This  renders  it  unnecessary  for 
me  to  look,  at  this  time,  into  the  transaction  in  reference  to  the 
Doughty  judgment. 

In  my  view  of  the  case,  as  it  stands  upon  the  bill  and  answer, 
the  injunction  should  be  retained  till  the  hearing  of  the  case  on 
the  proofs. 

Motion  denied. 

Crrm>  in  Vreeland  v.  N.  J.  Slone  Co.,  10  C.  E.  Qr.  143. 


JUNE  TERM,  1845.  77' 

Bullock  v.  Zilley  et  al. 


JOHN  B.  BULLOCK  v.  BENJAMIN  ZILLEY,  SURVIVING  EXECU- 
TOR OF  JOHN  BUTCHER,  ET  AL. 

The  complainant  filed  his  bill  for  his  proportion  of  the  interest  of  a  surplus 
in  the  hands  of  an  executor,  and  made  his  brothers  and  sisters,  who  are  en- 
titled to  equal  portions  of  the  interest,  (if  the  complainant's  claim  for  interest 
is  good,)  defendants.  They  answered  the  bill,  submitting  their  rights  to  the 
protection  and  judgment  of  the  court.  Pending  the  suit,  the  person  at  whose 
death  the  principal  was  to  be  distributed  among  the  complainant  and  his 
brothers  and  sisters,  died  ;  and  thereupon  the  complainant  settled  with  the 
executor.  No  decree  had  been  made  in  the  cause.  The  complainant  was 
permitted  to  discontinue  the  suit. 


John  Butcher,  late  of  the  county  of  Burlington,  died  Feb- 
ruary 7th,  1818,  leaving  a  will,  by  which  he  devised  and  be- 
queathed to  Thomas  Butcher,  since  deceased,  and  the  defend- 
ant Benjamin  Zilley,  whom  he  also  appointed  executors  of  his 
will,  all  his  estate,  real-and  personal,  in  trust,  that  they,  or  the 
survivor  of  them,  should  sell  the  same,  and  put  the  proceeds  at 
interest.  The  will  directs  the  said  executors  and  trustees,  and 
the  survivor  of  them,  to  pay  the  interest,  in  their  discretion,  to 
the  support  and  maintenance  of  his  nephew  Thomas  Bullock 
and  his  family,  including  the  complainant,  for  and  during  the 
natural  life  of  the  said  Thomas ;  and  at  his  death  to  divide  the 
principal  equally  among  the  children  of  the  said  Thomas,  in- 
cluding the  complainant,  who  may  then  be  living.  Thomas 
Butcher  died  January  1st,  1828.  Five  children  of  Thomas 
Bullock,  besides  the  complainant,  are  still  living,  namely,  Mar- 
garet Bullock,  Amos  Bullock,  Thomas  Bullock,  Elizabeth,  wife 
of  John  H.  Cook,  and  Ann,  wife  of  Turner  Risdon.  Rebecca, 
the  wife  of  Thomas  Bullock,  died  July  10th,  1839.  The  de- 
fendant Benjamin  Zilley,  surviving  executor,  bas  in  his  hands 
the  whole  of  the  surplus  of  the  estate  of  the  testator,  after  paying 
the  debts. 

The  bill  was  filed  April  5th,  1842,  in  the  lifetime  of  Thomaa 
Bullock,  and  states  that  the  complainant  had  formed  no  part  of 
the  family  since  he  attained  the  age  of  sixteen,  and  prays  that 
the  defendant  Zilley  mav  be  decreed  to  account  with  him,  and 


73  CASES  IN  CHANCERY. 

Bullock  v.  Zilley  et  al. 

that  the  said  surplus  may  be  applied  in  a  course  of  administra- 
tion, agreeably  to  the  directions  of  the  will ;  and  that  the  com- 
plainant may  be  paid  his  proportion  of  the  annual  interest,  or 
such  portion  thereof  as  may  be  necessary  to  his  support,  or  he 
shall  appear  to  be  justly  entitled  to  under  the  directions  of  the 
said  will. 

The  other  children,  with  the  husbands  of  the  married  sisters, 
and  Thomas  Bullock,  are  made  defendants. 

Zilley,  the  surviving  executor,  and  Thomas  Bullock,  two  of 
the  defendants,  put  in  their  joint  and  several  answer.  This 
answer  states  that  all  the  interest  of  the  said  principal  sum  so 
invested  has  been  paid,  annually,  to  the  support  and  mainte- 
nance of  the  said  Thomas  Bullock  and  his  family,  including  the 
complainant ;  and  claims  that,  by  the  true  construction  of  the 
will,  the  interest  has  been  properly  paid. 

In  May,  1844,  after  all  the  testimony  had  been  taken  in  the 
cause,  the  other  children  of  Thomas  Bullock  put  in  their  an- 
swers. Margaret  Bullock  answers  separately  ;  and  after  admit- 
ting, &c.,  says  that,  some  time  in  September,  1828,  she  was  put 
out  to  one  Amos  Bullock,  and  that  she  returned  to  her  father  in 
the  spring  of  1842,  and  that  she  is  ignorant  what  share  or  por- 
tion of  the  said  balance  she  is  entitled  to,  or  what  sums  have 
been  paid  to  her  or  for  her  use,  either  by  her  father  or  by  the 
said  Benjamin  Zilley  ;  but  that  she  is  willing  to  abide  by  their 
account  thereof,  and  she  submits  her  rights  under  the  will  to  the 
judgment  of  the  court. 

The  other  children,  with  the  husbands  of  the  married  daugh- 
ters, put  in  their  joint  and  several  answer;. one  of  them,  being 
an  infant,  answering  by  his  guardian.  This  answer,  after 
admitting,  &c.,  states  that,  in  September,  1828,  the  family 
of  Thomas  Bullock  was  broken  up,  and  his  children  were  put 
out  to  different  persons.  That  the  defendant  Elizabeth  Cook 
left  her  father's  family  in  the  fall  of  1828,  and  did  not  return 
till  January,  1841,  when  she  remained  eleven  months,  paying 
for  her  board  by  her  labor ;  that  she  had  a  bureau,  clothes, 
and  goods,  of  the  value  of  $129,  which  she  believes  were 
jwid  for  or  furnished  by  her  father,  and  also  $100  in  cash,  re- 
ceived of  Zilley.  That  th(;  defendant  Ann  Kisdon.  has  re- 
ceived from,  her  father  $160  in  cash,  and  received,  at  sun- 


JUNE  TERM,  1845.  79 

Bullock  v.  Zilley  et  al. 

dry  times,  dresses,  bedding,  <fcc.,  to  the  amount  of  $66.50  ;  and 
that  her  father  paid  for  her  board  and  schooling,  while  she  was 
with  Caleb  Sykes,  $84.  That  all  these  defendants  are  willing 
that  whatever  may  have  been  received  by  them  should  be  al- 
lowed out  of  any  share  of  the  said  balance  to  which  they,  re- 
spectively, may  be  entitled,  and  submit  their  rights  to  the 
judgment  of  the  court,  and  hope  that  whatever  rights  they,  re- 
spectively, have  under  the  said  will,  may  be  protected  and 
secured  to  them.  This  answer  asks  that  the  trust  fund,  in 
whose  hands  soever  it  may  be,  to  which  they  are  not  immedi- 
ately entitled,  may  be  invested,  under  the  direction  of  the  court, 
according  to  the  intent  and  meaning  of  the  said  will ;  and  says 
that  these  defendants,  since  the  llth  of  February,  1829,  have 
received  but  trifling  sums  of  interest  on  the  said  balance,  except 
what  is  before  stated,  and  have  supported  themselves,  or  been 
supported  by  the  persons  with  whom  they  were  living,  with 
little,  if  any,  expense  to  their  father. 

The  defendant  Thomas  Bullock,  Jr.,  who  answers  by  his 
guardian,  says  he  is  an  infant  under  twenty-one,  and  claims 
such  interest  under  the  said  will,  and  in  the  said  balance,  as  he 
is  entitled  to,  and  submits  his  interests  to  the  protection  of  the 
court. 

The  father,  Thomas  Bullock,  died  in  March,  1845,  and  in 
this  position  of  things  Zilley,  the  surviving  executor  and  prin- 
cipal defendant,  settled  with  the  complainant  his  whole  claim, 
and  took  his  receipt  therefor,  and  the  court  is  now  moved  to 
allow  the  bill  to  be  dismissed. 

W.  L.  Dayton,  for  the  motion. 

G.  D.  Wall  and  P.  D.  Vroom,  contra.  It  is  a  bill  for  a 
share  of  surplus,  and  the  co-legatees  were  made  defendants. 
All  must  be  made  parties,  either  plaintiffs  or  defendants.  The 
defendants  have  answered.  The  rule,  they  apprehend,  is  settled. 
2  Sim.  and  Stuart  219. 

There  are  two  modes  of  proceeding;  one  co-legatee  or  co- 
distributee  may  file  a  bill  for  himself,  and  for  others  who  will 
come  in  and  contribute.  In  this  case,  he  controls  the  suit  until 
decree.  The  other  modo  is,  to  make  his  co-distributees  de- 


80  CASES  IN  CHANCERY. 

Bullock  v.  Zilley  et  al. 

fendants,  and  if  they  come  in  and  answer,  the  complainant,  they 
contend,  loses  the  control.  The  other  defendants  have  set  up 
their  claim,  and  cannot  file  a  bill.  The  case  stands  on  the  foot- 
ing on  which  it  would  stand  under  the  first  mode  after  a  decree. 
Can  the  executor,  after  the  answers  are  in,  settle  with  the  com- 
plainant? and  can. the  complainant,  after  the  answers  are  in, 
withdraw  the  suit  ?  The  way  is,  to  permit  the  defendants  to 
proceed  in  the  name  of  the  complainant. 

Mr.  Dayton,  in  reply.  The  argument  on  the  other  side 
shows  he  is  correct.  What  is  the  principle  applying  to  the 
case?  The  gentlemen  on  the  other  side  have  given  the  rule. 
It  is  this  :  after  a  decree  settling  the  whole  case,  the  defendants 
may  prosecute  the  decree,  because  they  cannot  then  file  a  bill. 
But  if  on  dismissal  the  defendants  can  file  a  bill  in  their  own 
behalf,  there  is  no  reason  why  the  complainant  should  not  be 
permitted  to  withdraw  his  suit.  The  bill  was  filed  before  the 
death  of  Thomas  Bullock,  and  could  not  call  for  anything  more 
than  a  share  of  the  interest.  The  situation  of  the  parties  is  now 
such,  since  the  death  of  the  father,  Thomas  Bullock,  that  the 
other  co-distributees  will  be  obliged  to  file  a  bill  for  their  share 
of  the  principal,  if  they  can  make  no  settlement  with  the  execu- 
tor. The  dismissal,  therefore,  will  not  involve  them  in  addi- 
tional expense.  He  cited  Ho/.  Ch.  Pr.  327  ;  2  Smith's  Ch.  Pr. 
311-12. 

THE  CHANCELLOR.  To  avoid  multiplicity  of  suits,  one  per- 
son is  allowed  to  file  a  bill  on  behalf  of  himself  and  all  others 
in  the  same  interest  who  may  choose  to  come  in  and  claim 
relief  by  and  contribute  to  the  expense  of  the  suit.  In  such 
case,  the  decree  provides  for  the  rights,  not  only  of  the  com- 
plainant, but  of  all  others  who  come  in  to  take  the  benefit  of  it; 
and,  therefore,  the  complainant  cannot,  after  the  decree,  di.smi.ss 
his  bill.  I  do  not  think  the  present  case  is  within  this  principle. 
The  complainant  filed  his  bill  for  his  proportion  of  the  interest 
of  the  surplus  in  the  hands  of  the  executor,  and  made  the  other 
children,  who  are  entitled  to  equal  proportions  of  the  interest, 
(if  the  complainant's  claim  for  interest  is  good,)  defendants. 
They  answered  the  bill,  admitting  they  had  received  certain 


JUNE  TERM,  1845.  81 


Washer  v.  Brown. 


amounts,  and  submitting  their  rights  to  the  protection  and  judg- 
ment of  the  court.  Pending  the  suit,  the  father,  on  whose 
death  the  children  became  entitled  to  have  the  principal  distri- 
buted among  them,  died.  No  decree  had  been  made  in  the 
suit,  and  the  complainant  thereupon  settled  with  the  executor, 
and  gave  a  receipt  for  his  share,  both  of  principal  and  interest. 
I  know  of  no  rule  which  forbids  permitting  him  to  withdraw 
his  suit. 

Let  the  bill  be  dismissed. 


GEORGE  WASHER  AND  DANIEL  WASHER  v.  JAMES  BROWN. 

1.  A,  who  was  keeping  a  tavern  and  occupying  a  house  and  lands  on  one 
side  of  the  road,  and  a  small  strip  on  the  other  side,  on  which  were  a  well  and 
stables  used  by  him  for  the  purposes  of  the  tavern,  agreed  to  sell  the  prem- 
ises to  B,  knowing  that  B  desired  to  purchase  them  for  the  purpose  of  keep- 
ing a  tavern  there,  and  represented  to  B  that  his  title  covered  the  strip  on 
which  were  the  well  and  stables.    A  did  not  own  the  strip.     Under  this  rep- 
resentation B  entered  into  articles  of  agreement  for  the  purchase.     An  injunc- 
tion was  granted  staying  the  further  prosecution  of  an  action  at  law,  brought 
by  A  against  B,  for  not  complying  with  the  articles,  though  the  deed  to  A, 
which  was  referred  to  in  the  articles  as  containing  a  description  of  the  prem- 
ise?, was  on  the  table  when  the  articles  were  drawn,  in  the  presence  of  B ;  the 
bill  alleging  that  B,  confiding  in  the  representations  of  A,  did  not  examine 
the  deed. 

2.  But  on  the  coming  in  of  the  answer,  positively  denying  the  allegations 
on  which  the  complainant's  equity  rested,  the  injunction  was  dissolved. 

3.  It  was  said  by  the  Chancellor,  that  a  purchaser  for  full  value  is  entitled 
to  have  an  encumbrance  removed,  by  the  application  to  that  purpose  of  a 
sufficient  portion  of  the  purchase  money. 


The  bill  in  this  case,  filed  April  19th,  1845,  states  that 
about  December  26th,  1843,  the  complainant,  Daniel  Washer, 
being  desirous  to  purchase  a  house  and  lot  suitable  for  keeping  a 
tavern,  and  the  complainant,  George  Washer,  the  father  of  said 
Daniel,  being  willing  to  assist  the  said  Daniel  therein,  the  com- 
plainants opened  a  negotiation  with  James  Brown,  the  defend- 
ant, for  the  purchase  of  a  lot  of  laud  of  about  six  acres,  with  a 
dwelling-house  and  other  improvements  thereon,  then  occupied 


82  CASES  IN  CHANCERY. 

Washer  v.  Brown. 

by  him  as  a  tavern.  That  on  that  day  the  defendant,  at  the 
request  of  the  complainants,  who  were  strangers  in  that  vicinity, 
pointed  out  and  described  to  them  the  premises,  and  repre- 
sented them  as  consisting  of  about  six  acres,  situated  on  both 
sides  of  the  turnpike  road  leading  from  Paterson  to  Hamburgh, 
on  the  northerly  side  of  which  road  was  the  tavern-house  and 
the  principal  part  of  the  laud ;  and  on  the  southerly  side  a  nar- 
row strip  of  land,  about  two  chains  long  and  thirty  feet  wide, 
uot  enclosed  by  any  fence,  on  which  was  a  well  of  water  and 
a  shed  or  barn  about  forty  feet  long  by  twenty-four  feet  wide, 
with  stalls  and  a  mow,  used  for  stabling  and  for  storing  hay  for 
the  purposes  of  the  tavern.  That  after  viewing  the  premises  so 
pointed  out  and  described  to  them,  the  complainants  concluded 
they  would  suit  their  purposes,  and  offered  to  buy  the  same. 
That  Brown  asked  1600  dollars,  and  complainants  offered  1400 
dollar^,  and  Brown  agreed  to  take  it — 500  dollars  to  be  paid 
when  the  deed  should  be  delivered,  and  the  residue  in  two  equal 
annual  payments;  the  defendant  to  execute  a  good  and  suffi- 
cient deed  on  or  before  April  1st,  1844.  That  after  the  price 
was  agreed  upon,  the  defendant  remarked  to  the  complainants 
that  he  did  not  want  to  take  advantage  of  them ;  that  there  was 
a  mortgage  on  the  premises  for  1000  dollars,  but  that  the  holder 
of  the  mortgage  was  willing  it  should  remain,  if  the  interest 
was  paid,  for  two  or  more  years,  and  that  there  was  no  other 
encumbrance  on  the  lot.  That  the  complainants,  confiding  in 
the  defendant's  representations  as  to  the  description  of  the  prem- 
ises and  the  encumbrances  thereon,  consented  that  articles  of 
sale  and  purchase  should  be  drawn  and  executed  forthwith, 
without  taking  time  to  examine  the  record  to  ascertain  the  title 
of  the  defendant,  or  the  encumbrances  on  the  premises.  That 
articles  were  accordingly  prepared  and  executed  on  the  said 
26th  of  December,  1843.  The  articles  recite  that  the  defend- 
ant had  sold,  and  that  the  complainants  had  purchased  from 
him,  the  tract  of  land  and  premises  lying  in  the  township  of 
Manchester  aforesaid,  containing  six  acres,  strict  measure,  par- 
ticularly described  in  a  deed  from  Harriet  Merselis  to  the  defend- 
ant, dated  March  llth,  1841,  recorded,  &c.,  subject  to  a  mort- 
gage from  the  defendant  to  the  said  Harriet  for  1000  dollars ; 
and  then  provides  that  Brown  agrees  to  execute  a  good  and  suf- 


JUNE  TERM,  1845.  ;83 


Washer  v.  Brown. 


ficient  deed  of  conveyance  for  the  said  tract  of  land  and  prem- 
ises, on  or  before  April  1st,  1844,  and  to  deliver  possession  of 
the  premises  on  the  17th  of  April,  1844,  and  that  the  Washers 
agree  to  pay  Brown  for  the  premises,  $1400,  as  follows  :  $500 
on  the  delivery  of  the  deed,  and  the  balance  of  the  purchase 
money  in  two  equal  yearly  payments  thereafter. 

The  bill  states  that  the  complainants  did  not  examine  the 
deed  referred  to  in  the  said  articles,  but  that,  trusting  to  the 
representations  of  Brown,  they  supposed  the  same  conveyed  all 
the  premises  shown  to  them  by  Brown.  That,  therefore,  on  the 
same  day,  the  complainants  paid  on  the  said  articles  of  agree- 
ment, $10.  That  before  the  day  fixed  for  the  delivery  of  the 
deed,  the  complainants,  to  their  great  surprise,  ascertained 
that  a  part  of 'the  premises  for  which  they  had  bargained,  that 
is  to  say,  the  part  on  which  were  the  well  and  shed  aforesaid, 
were  not  embraced  in  the  said  article,  and  that  Brown  had  no 
title  thereto,  and  that  the  complainants  had  been  grossly  de- 
ceived by  Brown's  representations  in  relation  to  the  premises. 
That  the  premises,  without  the  said  strip  of  land,  being  entirely 
unsuitable  for  the  keeping  of  a  tavern,  the  purpose  for  which 
they  were  intended  to  be  used,  and  being  worth  not  more  than 
$1000  for  any  other  purpose,  the  complainants  wrote  a  letter 
to  Brown,  to  the  effect  that  they  had  been  grossly  deceived  in 
the  matter  by  his  false  representations,  and  that  the  premises 
were  not  truly  shown  and  described  to  them  by  him,  and  there- 
fore declining  to  carry  into  effect  the  said  agreement — which 
letter  the  complainants  caused  to  be  delivered  to  Brown,  on  or 
about  January  20th,  1844.  That  on  or  a.bout  February  7th,  1844, 
Brown,  in  company  with  one  Samuel  Ryerson,  came  to  the  house 
of  the  complainant  George,  and  tendered  to  the  complainants 
a  writing  which  he  alleged  to  be  a  deed  of  the  premises,  and 
demanded  the  residue  of  the  first  payment.  That  the  said  deed 
did  not  include  the  land  on  which  were  the  well  and  shed. 
That  the  complainants  had  no  intimation  that  Brown  was  about 
to  come,  at  that  or  any  other  time,  for  the  purpose  aforesaid,  and 
had  supposed,  for  reasons  above  stated,  that  he  had  relinquished 
any  intention  of  seeking  a  compliance  with  said  agreement, 
more  particularly  as  the  complainants,  on  that  day,  for  the  first, 
discovered  the  additional  fact  that  there  was  another  mortgage 


84  CASES  IN  CHANCERY. 

Washer  v.  Brown. 

on  the  premises  for  $200,  of  which  the  defendant  had  not 
informed  the  complainants.  That  the  complainants  again 
declined  to  accept  a  deed  for  a  part  of  the  premises,  and,  as  a 
reason  therefor,  repeated  to  Brown  the  charge  that  he  had  de- 
ceived them  as  aforesaid,  and  that  Brown  admitted  the  truth  of 
the  charge,  but  replied  that  the  well  and  the  shed  belonged  to 
the  Paterson  Turnpike  Company,  and  that  the  complainants 
might  obtain  the  right  to  use  the  same,  and  that  he  would  give 
a  warrantee  deed  for  the  residue  of  the  premises.  That  the  com- 
plainants declined  to  receive  such  deed.  That  on  that  occasion 
the  complainants,  or  one  of  them,  told  Brown  they  had  sent 
him  a  letter  informing  him  of  their  intention,  so  that  it  might 
not  occasion  any  damage  to  him,  and  that  Brown  admitted  he 
had  received  the  letter,  and  said  it  was  no  damage  to  him. 
That  the  complainants  then  told  Brown  that  he  had  informed 
them  there  was  but  one  mortgage  on  the  premises,  and  that 
they  had  learned  there  was  one  or  two  others.  That  Brown 
replied  that  was  no  concern  of  the  complainants,  as  he  was  will- 
ing to  give  a  warrantee  deed.  That  the  complainants,  or  one 
of  them,  then  suggested  that  it  would  be  better  to  cancel  the 
articles,  and  that  Brown  said  that  the  damage  to  either  party 
had  been  little  or  nothing,  and  that  he  was  willing  to  do  so, 
but  he  declined  to  do  it  at  that  time,  on  the  ground  that  he  had 
left  his  article  at  home,  but  proposed  to  meet  the  complainants, 
on  the  Friday  or  Saturday  following,  at  the  house  of  Peter  C. 
Brown,  and  cancel  the  articles.  That  on  that  day  the  defend- 
ant refused  to  cancel  the  articles,  saying  that  he  had  changed 
his  mind.  That  the  strip  of  land  on  which  the  well  and  shed 
are,  is  owned  by  William  N.  Colfax,  and  is  now  held  by  Peter 
Quackenbush,  under  a  lease  from  said  Colfax.  That  the  deed 
from  Harriet  Merselis  to  Brown,  referred  to  in  the  said  article?, 
does  not  include  the  said  strip  of  land,  and  that  Brown,  therefore, 
had  no  title  thereto  by  the  said  deed.  That  when  the  said  arti- 
cles of  agreement  were  executed,  there  was,  besides  the  mort- 
gage of  $1000  therein  mentioned,  another  mortgage  on  the 
premises,  given  by  Brown  and  his  wife  to  Peter  Quackeubush, 
for  $200,  dated  May  1st,  1841,  and  that  the  same  is  still 
unsatisfied.  That  the  complainants  have  been  informed  and 
believe,  and  charge  the  truth  to  be,  that  since  the  execution  of 


JUNE  TERM,  1845.  85 


Washer  v.  Brown. 


the  said  articles  of  agreement,  the  said  $1000  mortgage 
has  been  foreclosed,  and  the  equity  of  redemption  in  said  pre- 
mises sold,  and  Brown  dispossessed.  That  Brown  is  not  of 
sufficient  responsibility  to  answer  in  damages  for  a  breach  of 
warranty ;  and  that  he  has  removed  from  Passaic,  and  now 
resides  in  Essex  county.  That  Brown  has  commenced  an  a<5- 
tiop  for  covenant  broken  ,in  the  Supreme  Court,  against  the  com- 
plainants, and  filed  his  declaration  therein  for  an  alleged  breach 
of  the  said  agreement.  The  bill  states  that  the  complainants 
are  informed  and  believe,  and  therefore  charge,  that  no  part  of 
the  principal  or  interest  secured  by  either  of  the  two  mortgages 
has  been  paid,  and  that  the  principal  and  interest  due  thereon 
when  the  said  agreement  was  executed,  exceeded  the  sum 
which,  by  the  said  agreement,  the  complainants  were  to  pay 
Brown  for  the  premises. 

The  bill  prays  that  Brown  may  be  decreed  to  deliver  up  the 
said  articles  of  agreement  to  be  canceled,  and  to  refund  to  the 
complainants  the  money  paid  by  them  on  the  said  agreement; 
and  that  he  may  be  enjoined  from  further  prosecuting  his  said 
action  at  law. 

An  injunction  was  granted,  according  to  the  prayer  of  the 
bill  in  that  respect. 

The  defendant  put  in  his  answer  on  the  27th  May,  1845. 
The  answer  denies  that  he  represented,  in  any  way,  to  the 
complainants,  that  he  was  the  owner  of  the  strip  on  which  the 
well  and  shed  are,  but  says  that  he  told  the  complainants, 
when  they  were  looking  at  the  property,  that  the  said  strip  did 
not  belong  to  him.  He  says  further,  that  before  the  agreement 
was  reduced  to  writing,  he  informed  the  complainants  that 
there  were  two  mortgages  on  the  premises,  one  for  $1000, 
which  he  thought  could  remain  if  the  interest  was  paid,  and 
one  for  $200,  which  it  was  agreed  between  him  and  the 
complainants  should  be  paid  off  at  the  time  of  the  delivery  of 
the  deed.  He  denies  that  he  concealed,  in  any  way,  the  exist- 
ence of  the  mortgage,  but  says  it  was  agreed  between  him  and 
the  complainants,  that  when  the  deed  was  delivered,  the  parties 
should  go  together  to  the  holder  of  the  mortgage  and  pay  it  off 
from  the  amount  of  the  first  payment  to  be  made  by  the  com- 
plainants to  the  defendant,  and  that  the  said  mortgage  should 


8G  CASES  IN  CHANCERY. 

Washer  v.  Brown. 

be  canceled.  That  after  the  agreement  was  made,  the  defend- 
ant proposed  Judge  Young  as  a  competent  person  to  draw  the 
articles;  that  the  complainants  and  defendant  went  together  to 
his  house,  and  the  agreement  was  stated  to  him  in  the  presence 
of  all  the  parties,  and  he  was  requested  to  reduce  it  to  writing, 
and  that  in  order  to  give  him  a  full  description  of  the  property, 
the  deed  to  the  defendant  for  the  property  intended  to  be  sold 
was  produced  and  read  and  examined,  and  the  defendant  thinks 
the  complainants  read  the  description  therefrom  ;  that  the  deed 
was  open  on  the  table  before  them  all,  while  the  agreement  was 
drawn ;  that  Young  drew  the  agreement  in  the  presence  of  the 
parties,  and  read  it  to  them  ;  that  both  the  complainants  looked 
at,  and  he  thinks  examined  the  said  deed.  That  he  did  not,  in 
any  way,  represent  to  the  complainants  that  the  said  strip  of 
land  belonged  to  him,  or  that  he  had  a  right  to  sell  it.  He  de- 
nies that  the  premises  were  useless  for  the  purpose  of  keeping  a 
tavern  without  the  said  strip,  and  were  worth  a  third  less  than 
the  amount  agreed  to  be  paid,  but  says  they  were  worth  the 
$1400  for  the  purpose  of  a  tavern.  He  admits  that  he 
received  from  the  complainants  a  letter  stating  that  they  should 
'iot  take  the  property,  but  says  it  was  not  mailed  to  him  till  the 
first  of  March,  as  appears  by  the  post-mark.  The  answer 
gives  a  copy  of  the  letter.  It  is  dated  February  22d,  1844.  It 
informs  the  defendant  that  the  complainants  will  not  take  the 
property;  that  they  had  purchased  elsewhere;  that  the  defend- 
ant's neighbors  had  told  the  complainants  that  he  did  not  own 
where  the  well  and  shed  were;  and  says  that  if  he  does  not,  he 
lias  no  one  to  blame  but  himself;  and  that  if  it  is  not  sold,  he 
has  nobody  to  blame  but  his  own  neighbors.  The  defendant 
admits  he  tendered  the  deed  to  the  complainants,  but  says  the 
tender  was  not  made  on  the  7th  of  February,  as  stated  in  the 
bill,  but  about  the  middle  of  March  ;  and  says  that  when  he 
tondered  the  deed,  Washer,  the  father,  said  he  had  altered  his 
mind  and  purchased  elsewhere,  as  his  son  would  rather  live  in 
Newton  ;  and  he  denies  that  at  that  time  or  any  other,  he  ad- 
mitted that  he  had  sold,  or  agreed  to  sell,  the  said  strip,  or  rep- 
n-cntt'd  that  it  was  his,  but  says  that  at  that  time,  and  in  the 
pn-rnce  of  said  Ryerson,  he  denied  having  made  any  such  rep- 
resentation to  the  complainants.  He  denies  that  the  complain- 


JUNE  TERM,  1845.  87 

Washer  v.  Brown. 

iuts,  or  either  of  them,  stated  that  they  were  rea'dy  to  comply 
with  the  agreement  if  the  deed  corresponded  with  the  descrip- 
tion given  to  them  ;  and  denies  that  he  had  said  that  the  refusal 
:>f  the  complainants  to  take  the  deed  had  been  no  damage  to 
him  ;  and  denies  that  he  had  said  it  was  no  concern  of  the  com- 
plainants, for  that  he  gave  a  warrantee  deed  for  the  premises/ 
when  the  complainants  spoke  of  the  second  mortgage;  and  says 
that  he  stated,  at  that  time,  to  the  complainants,  that  he  had  told 
them  of  the  second  mortgage;  and  denies  that  he  had  deceived 

lie  complainants  in  any  way,  or  made  any  false  representation. 
He  says  no  proposition  or  agreement  was  made  to  cancel  the 
articles,  but  that  it  was  agreed  by  the  parties,  in  the  presence  of 
Ilyerson,  that  they  should  meet  at  a  future  day,  at  the  place 
mentioned  in  the  bill,  and  leave  the  matters  in  difference  be- 
tween them  to  men.  He  says  that  on  the  day  agreed  upon,  he 
went  to  the  place  agreed  upon,  for  the  purpose  of  meeting  the 
complainants,  and  leaving  the  matters  in  difference  between 
them  to  men,  as  agreed  on,  and  not  for  the  purpose  of  cancel- 
ing the  articles  of  agreement.  That  neither  of  the  complain- 
ants came,  but  that  a  person  representing  himself  to  be  a  son  of 
one  of  the  complainants  came,  and  said  he  came  to  settle  the 
business.  That,  the  defendant  asked  him  if  he  was  ready  to 
choose  men,  as  they  had  agreed,  and  he  said  his  father  had  told 
him  not  to  do  so.  The  defendant  denies  that,  on  that  occasion, 
he  said  he  had  changed  his  purpose,  and  was  not  willing  to  carry 
into  effect  his  agreement  to  cancel  the  articles,  for  that  no 
such  agreement  was  made.  He  admits  that  the  said  strip  of 
land  is  owned  by  Colfax,  and  is  held  by  Quackeubush  under  a 
lease.  He  admits  that  the  property  agreed  to  be  sold  by  him 
has  been  sold  under  the  $1000  mortgage.  He  says  he  is  of 
sufficient  responsibility  to  answer  any  damages  for  breach  of 
warranty,  and  that  he  believes  himself  to  be  worth  $1000 
after  his  debts  are  paid.  He  says  it  is  not  true  that  the  in- 
terest on  the  two  mortgages  was  all  unpaid,  and  that  the  amount 
due  on  them  exceeded  the  amount  to  be  paid  by  the  complain- 
ants for  the  property,  but  says  there  was  but  about  $75, 
which  would  become  due  the  next  spring,  over  and  above  the 
amount  of  the  principal.  He  says  that  it  was  agreed  that  the 
interest  on  the  $1000  mortgage  should  be  paid  from  the 


88  CASES  IN  CHANCERY. 

Washer  v.  Brown. 

purchase  money  to  the  holder  of  the  mortgage ;  and  that  he 
agreed  to  go  with  the  complainants  and  see  it  done,  and  en- 
deavor to  get  an  extension  of  time  to  pay  the  principal  ;  and 
that  it  was  agreed  that  the  parties  should  go  together  to  the 
holder  of  the  $200  mortgage,  and  that  that  should  be  paid  from 
the  purchase  money,  and  canceled.  He  says  he  resides  in  Essex 
county,  where  he  is  carrying  on  business,  having  made  his  ar- 
rangements to  remove  from  Passaic  county  in  consequence  of 
the  sale  he  supposed  he  had  made  to  the  complainants. 

On  this  answer  a  motion  was  made  to  dissolve  the  injunction. 

L.  C.  Grover,  for  the  motion. 

'•  '    £' 
Z>.  Haines,  contra. 

THE  CHANCELLOR.  The  second  mortgage  imposed  no  serious 
difficulty  on  the  complainants;  in  reference  to  that  they  were 
purchasers  for  full  value,  and  would  be  entitled  to  have  it  re- 
moved by  the  application  of  a  part  of  the  purchase  money  for 
that  purpose.  But  the  answer  states  that  this  was  in  fact  the 
agreement.  As  to  the  other  part  of  the  case,  the  allegations  on 
which  the  equity  of  the  bill  rested  are  sufficiently  denied  by  the 
answer.  The  injunction  will  be  dissolved. 

Order  accordingly. 


CA.SES 


ADJUDGED  IN 


THE  PREROGATIVE  COURT 


OF  THR 


STATE  OF  NEW  JERSEY. 

JUNE  TEEM,  1845. 


OLIVER  S.  HALSTED,  ORDINARY. 


IN  THE  MATTER  OF  THE  PROSECUTION  OF  THE  BOND  OF 
EDEN  8.  WEBSTER,  ADMINISTRATOR,  Ac,  OF  JOHN  8.. 
WEBSTER,  DECEASED. 

1.  Motion  to  vacate  an  order  of  the  Ordinary,  vacating  an  order  to  prose- 
cute an  administrator's  bond,  denied,  the  Supreme  Court  having  acted  on  the 
vacating  order,  and  dismissed  the  suit  on  the  bond. 

2.  By  whom  application  may  be  made  to  the  Ordinary,  for  leave  to  prose- 
cute an  administrator's  bond. 


John  S.  Webster,  late  of  the  county  of  Essex,  died  intestate, 
in  the  year  1841.  In  September  of  that  year,  administration 
was  granted  to  Eden  S.  Webster,  who,  with  William  Webster  as 
his  surety,  gave  bond  to  the  Ordinary,  in  the  penal  sum  of 
$3500,  with  a  condition  in  the  form  prescribed  by  the  statute. 
The  administrator  shortly  after  filed  an  inventory  of  the  goods 
and  chattels  of  the  intestate,  amounting  to  $1699.07^. 

VOL.  i.  p  89 


90  PREROGATIVE  COURT. 

Administration  bond  of  Eden  S.  Webster. 

On  the  16th  of  February,  1843,  a  copy  of"  the  said  bond, 
certified  by  the  surrogate  of  Essex  to  be  a  true  copy,  and  a  cer- 
tificate of  the  said  surrogate,  that  on  the  27th  of  September,  1841, 
the  said  administrator  filed  in  his  office  an  inventory  of  the  per- 
sonal estate  of  the  said  deceased,  and  that,  since  that  time, 
nothing  appeared  of  record  in  reference  to  said  estate,  were  pro- 
duced before  the  Ordinary,  by  an  attorney  and  counselor  of  the 
Supreme  Court,  and  on  his  suggestion,  no  doubt,  as  to  the  per- 
son to  be  named  as  making  the  request,  the  Ordinary  thereupon 
made  the  following  order:  "Upon  the  request  of  Felix  Han- 
dequin,  let  the  administration  bond  within  named  be  prosecuted, 
and  the  moneys  recovered  applied  in  the  manner  directed  by 
law."  ' 

In  the  term  of  February,  1843,  of  the  Supreme  Court,  Han- 
dequin  caused  a  suit  to  be  commenced  on  the  bond.  Process 
was  issued  against  the  administrator  and  his  surety,  William 
Webster,  and  was  returned  served  on  William  Webster,  and 
"not  found"  as  to  the  administrator.  William  filed  a  demurrer 
in  the  suit,  which  was  overruled,  and  he  was  thereupon  ruled  to 
plead.  He  neglected  to  do  so,  and,  after  the  time  for  pleading 
was  out,  he  applied  to  the  Ordinary,  at  the  July  Term,  1844, 
of  the  Prerogative  Court,  to  set  aside  the  order  which  had  been 
granted  for  the  prosecution  of  the  bond.  Notice  of  hi.s  applica- 
tion was  given  to  the  attorney  of  the  plaintiff,  in  the  Supreme 
Court,  and  the  following  grounds  for  the  application  were  stated 
in  the  notice : 

1.  That  no  petition  was  filed. 

2.  That  the  application,  if  any,  was  not  verified. 

3.  That  there  was  no  bond  to  indemnify  the  Ordinary  against 
costs. 

4.  That  it  did  not  appear  that  the  application  was  made  at 
the  instance  of  any  party  grieved. 

5.  That  the  application  was  not,  in  truth,  made  at  the  instance 
of  any  creditor  of  the  intestate,  or  of  any  party  grieved. 

The  matter  was  argued  before, the  Ordinary,  and  an  order  was 
made  vacating  the  order  to  prosecute  the  bond. 

In  consequence  of  this  order,  the  Supreme  Court,  in  Septem- 
ber, 1844,  on  motion  in  behalf  of  the  defendants  in  the  suit  oil 
the  administration  bond,  dismissed  that  suit. 


JUNE  TERM,  1845.  91 

Administration  Bond  of  Eden  S.  Webster. 

In  the  term  of -April,  1845,  of  the  Prerogative  Court,  applica- 
tion was  made  to  the  ordinary  to  vacate  the  said  vacating  order, 
to  the  end  that  the  Supreme  Court  might  be  moved  to  restore 
the  suit  on  the  bond.  The  argument  on  this  application  was 
heard  on  the  10th  of  May,  1845. 

3/r.  R.  Van  Arsdak,  for  the  motion,  contended  that  the  order 
of  February  16th,  1843,  giving  leave  to  prosecute  the  bond,  was 
regular,  and  properly  made.  The  application  for  the  bond  is  an 
ex  parte  proceeding.  Elm.  Dig.  167,  §  15.  The  act  of  prose- 
cuting is  the  act  of  the  Ordinary.  The  bond  is  sued  fof  the 
general  benefit  of  creditors  and  next  of  kin.  That  the  order  of 
August,  1844,  vacating  the  order  for  prosecution,  was  irregular/ 
and  should  be  set  aside.  This  last  order  was  made  on  applica- 
tion by  and  in  behalf  of  the  obligors  in  the  bond,  or  one  of  them. 
The  obligors  in  the  bond  are  no  parties  to  the  proceeding  before 
the  Ordinary,  to  obtain  the  bond  for  prosecution.  No  person 
can  take  advantage  of  error  except  a  party  to  the  record.  Again, 
the  order  of  August,  1844,  was  irregular  as  to  time ;  it  was  too 
late  to  apply  for  such  an  order.  The  suit  on  the  bond  was  com- 
menced in  February,  1843,  in  the  Supreme  Court,  and  it  was 
not  until  July,  1844,  that  an  application  was  made  to  the  Ordi- 
nary to  vacate  the  order  for  the  prosecution.  He  cited  4  Paige 
289,  439  j  3  76.  574 ;  3  Hill's  Rep.  393  ;  10  Wend.  561. 

He  said  that  no  petition  was  necessary  on  the  application 
to  the  Ordinary  for  leave  to  prosecute  the  bond.  Cowper  140. 
The  words  of  our  statute  are,  "  At  the  request  of  any  party 
aggrieved  by  such  forfeiture."  That  no  verification  is  neces- 
sary of  the  facts  on  which  the  application  to  the  Ordinary  for 
leave  to  prosecute  the  bond  is  made,  and  that  no  proof  of  debt 
is  necessary.  That  any  person  may  apply  for  leave  to  prose- 
cute, if  he  can  show  that  some  person  has  been  aggrieved — it  is 
not  necessary  that  the  applicant  be  aggrieved.  The  actual  proof 
of  individual  debt  is  not  important ;  there  must  be  somebody 
aggrieved. 

When  the  Ordinary  orders  the  bond  to  be  prosecuted,  it  is 
that  the  whole  estate  may  be  settled.  5  Halst.  67.  It  is  not 
the  creditor's  proceeding,  but  the  Ordinary's. 


92  PREROGATIVE  COURT. 

Administration  Bond  of  Eden  S.  Webster. 

Mr.  A.  Whitehead,  contra.  This  is  an  application,  not  for  an 
original  order  to  prosecute,  but  to  vacate  an  order  setting  aside 
an  order  to  prosecute.  The  propriety  of  the  original  order  is 
one  question  ;  the  propriety  of  restoring  that  order  by  vacating 
the  order  setting  it  aside,  is  another  question. 

The  facts  shown  on  the  application  for  the  original  order  were 
insufficient,  if  verified.  The  application  for  leave  to  prosecute 
the  bond  on  the  ground  of  his  being  a  creditor,  should  first 
establish  his  claim  by  obtaining  a  judgment.  The  cases  in  5 
Halst.  65,  and  1  Ib.  195,  show  that,  on  the  prosecution  of  an 
administration  bond,  there  can  be  no  inquiry  as  to  the  individual 
debt  of  the  person  at  whose  instance  the  bond  is  prosecuted. 
Suppose  it  to  be  the  only  claim,  and  the  administrator  desires 
that  the  question  whether  the  person  making  it  is  a  creditor,  be 
first  settled,  will  his  refusal  to  pay  it  without  a  suit  be  a  breach 
of  the  administration  bond? 

He  contended  that  the  original  order  for  leave  to  prosecute 
was  improvidently  and  illegally  made.  "  Request,"  in  the 
statute,  means  request  in  writing.  There  should  have  been  a 
petition. 

Again,  the  facts  on  which  the  application  is  made,  should  be 
verified.  There  should  be  a  prima  facie  case  made,  by  petition 
and  affidavit.  Is  the  Ordinary  to  take  it  for  granted  that  the 
party  applying  for  leave  to  prosecute  is  a  party  aggrieved  ? 
Should  it  not  be  stated  in  writing,  and  on  oath,  how  he  is  grieved  ? 
The  argument  on  the  other  side  would  make  the  practice  of  the 
court  very  uncertain. 

Again,  the  action  was  commenced  in  the  Supreme  Court  in 
February,  1843.  There  was  no  order  at  that  time  for  the  prose- 
cution of  the  bond,  because  no  such  order  was  then  on  file.  It 
was  not  filed  until  July,  1844.  The  case  in  1  Green  3,  does 
not  decide  the  question. 

Again,  the  applicant  for  leave  to  prosecute  was  not  required 
to  give  bond  for  indemnity  against  costs.  The  bond,  I  take  it, 
is  required  for  the  indemnity  of  the  defendants  in  the  suit,  and 
not  for  the  indemnity  of  the  Ordinary.  The  Ordinary  could  not 
be  obliged  to  pay  costs.  There  could  be  no  judgment  against 
the  Ordinary  for  costs.  No  statute  gives  costs  against  him. 
And  if  judgment  could  be  given  against  him  for  costs,  how 


JUNE  TERM,  1845.  93 

Administration  bond  of  Eden  S.Webster. 

could  the  costs  be  made  ?  Has  he  any  property  as  Ordiuary  ?  It 
could  only  be  by  some  proceed  ing  by  petition  to  the  government 
of  the  state. 

It  has  been  the  practice  uniformly  to  require  bond,  and  the 
party  defendant  relies  for  costs  solely  on  this  bond  given  to  the 
Ordinary.  They  would  have  it  on  the  other  side,  that  the 
Ordinary  may  be  asked  in  the  street,  and  by  a  citizen  of 
another  state,  for  leave  to  prosecute  an  administration  bond,  and 
that  too  on  a  mere  allegation  that  the  estate  was  indebted  to 
him. 

The  question  now  before  the  Ordinary  is  to  be  determined  on 
the  same  grounds  which  were  presented  to  the  Ordinary  on  the 
application  for  the  first  order.  The  question  now  is,  was  the 
first  order  improvidently  granted?  And  in  addition  to  theobjec- 
tions  already  urged  against  the  propriety  of  that  order,  Mr.  W. 
asked  if  there  was  any  evidence  of  a  forfeiture. 

Was  the  order  vacating  the  order  for  prosecution,  illegally 
made?  It  is  objected  that  too  much  time  had  elapsed  before  the 
application  for  the  vacating  order  was  made.  That  was  a  ques- 
tion for  the  ordinary.  Suppose  there  had  been  laches,  this  is 
not  a  technical  matter.  The  correctness  of  the  order  to  prose- 
cute is  the  groundwork  of  the  whole  proceeding;  nor  are  our 
objections  to  the  order  to  prosecute  technical.  The  substantial 
fact  that  the  party  applying  for  it  was  aggrieved,  should  have 
been  made  out,  and  a  bond  should  have  been  given.  And  if 
it  be  discovered  by  the  defendant,  at  any  time  during  the  pro- 
gress of  the  suit,  that  the  bond  has  not  been  given,  he  should 
be  allowed  to  apply  to  the  Ordinary  to  stay  the  suit.  If  any 
error  has  been  committed  in  ordering  a  prosecution,  the  party 
against  whom  the  mistake  is  made,  should  be  allowed  to  show 
that  mistake  to  the  Ordinary. 

As  to  the  cases  cited  by  Mr.  V.  A.,  not  one  of  them  is  a  case 
where  the  application  was  to  the  court  that  made  the  order.  The 
question  here  is,  whether  the  proceedings  of  the  Ordinary  have 
been  regular.  If  this  court  discovers  it  has  made,  ex  parte,  an 
imprudent  order,  it  will  correct  the  error.  Ex  parte  orders  are 
frequently  made  without  strict  examination.  As  to  the  case 
cited  from  Cowper,  it  does  not  appear  by  the  case  how  the  au- 
thority to  prosecute  the  bond  was  applied  for  or  given.  We  do 


94  PREROGATIVE  COURT. 

Administration  bond  of  Eden  S.  Webster. 

not  know  the  statutory  provisions  in  England  for  procuring  the 
bond,  or  that  they  have  any  such  provision.  Here  the  judicial 
action  of  the  Ordinary  is  required  on  the  case  made  before 
him.  Our  act  says,  "in  case  any  such  bond  shall  become  for- 
feited." Is  not  the  Ordinary  to  consider  the  point  of  forfeiture 
at  all? 

Again.  I  cannot  admit  the  proposition  contended  for  on  the 
other  side,  that  if  there  be  a  forfeiture,  any  person  may  be  per- 
mitted to  prosecute  who  chooses  to  apply  to  the  Ordinary  for 
liberty  to  do  so.  It  must  be  a  party  aggrieved.  Another  thing 
is  to  be  observed.  The  written  application  now  made  is  not 
verified.  There  is  nothing  appearing  even  now,  but  the  mere 
allegation  of  the  petition,  signed  by  a  proctor,  to  show  that  the 
person  who  obtained  the  order  to  prosecute  is  a  creditor.  He 
submitted  that  the  vacating  order  should  stand.  We  are  before 
the  same  court  that  made  both  these  orders,  and  the  present 
application  must  be  considered  in  the  same  way  in  which  it 
would  be  considered  if  we  were  before  the  same  individual. 

Mr.  W.  Pennington,  in  reply.  On  the  16th  of  February, 
1843,  the  Ordinary  directed  the  prosecution  of  this  administra- 
tion bond.  On  the  29th  of  August,  1844,  the  Ordinary  vacated 
the  order  for  prosecution  We  are  now  in  the  same  court,  on 
an  application  to  vacate  the  last  order  and  allow  the  first  to 
stand.  Two  questions  are  presented  : 

1.  Was  the  first  order  legal  ? 

2.  Be  the  first  order  legal  or  not,  was  the  last  order  legal? 
If  the  last  order  was  not  legal,  it  will  be  vacated,  aud  the  first 

be  let  to  stand. 

First.  The  order  of  February,  1843,  is  legal.  The  Ordinary* 
may  make  the  order.  It  is  not  the  Prerogative  Court;  if  it  was, 
it  would  be  necessary  to  be  made  in  term ;  but  it  is  the  Ordina- 
ry, and  it  may  be  done  in  vacation.  As  to  the  legality  of  the 
first  order,  what  was  the  case  presented?  I  think  there  was 
more  there  than  counsel  allow.  There  was,  first,  a  copy  of  the 
bond  ;  second,  a  copy  of  the  oath  of  the  administrator  ;  and, 
third,  a  certificate  of  the  surrogate,  that  since  the  filing  of  the 
inventory,  nothing  appeared  of  record  in  his  office,  in  reference 
to  the  estate.  Administration  was  granted  in  September,  1841. 


JUNE  TERM,  1845.  95 

Administration  bond  of  Eden  S.  Webster. 

A  condition  of  the  bond  is,  that  the  administrator  shall  make 
an  account  of  his  administration  within  twelve  months  from 
the  date  of  the  bond.  The  only  account  he  could  make  was  to 
be  made  before  this  surrogate.  I  maintain  that  the  Ordinary 
Lad  the  legal  evidence  of  the  forfeiture  of  the  bond. 

But  it  seems  to  be  supposed  that  the  Ordinary  must  also  be 
satisfied  of  the  debt.  This  I  deny.  The  Ordinary  may  make 
the  order  for  prosecution,  on  the  request  of  a  party  alleging 
himself  to  be  a  creditor  ;  this  is  sufficient.  No  oath  of  the  debt 
is  necessary,  nor  required  in  practice.  Whether  he  is  a  creditor 
or  not  is  the  very  thing  for  the  common  law  court  to  settle. 

Mr.  Wkitehead  here  said  that  is  the  very  thing  that  cannot  be 
settled  in  the  law  court,  in  a  suit  on  this  bond. 

Mr.  P.  said  it  certainly  could  not  be  supposed  that  the  Ordi- 
nary is  to  adjudge  the  indebtedness.  No  notice  of  an  applica- 
tion for  th«  bond,  for  prosecution,  is  given  by  any  practice,  or 
pretended  to  be  necessary.  The  act  says,  "  in  case  any  such 
bond  shall  become  forfeited,  it  shall  be  lawful  for  the  Ordinary 
to  cause  the  same  to  be  prosecuted,  at  the  request  of  any  party 
grieved  by  such  forfeiture."  Is  it  not  enough  to  shut  the  mouth 
of  the  administrator,  that  the  bond  is  forfeited?  If  it  is  not 
forfeited,  he  can  defend  himself  at  law.  The  moneys  recovered 
are  to  be  applied  towards  making  good  the  damage  sustained 
by  the  not  performing  the  condition  of  the  bond,  in  such  manner 
as  the  Ordinary,  as  judge  of  the  Prerogative  Court,  shall,  by  his 
sentence  or  decree  direct. 

The  power  to  put  the  bond  in  suit  is  entrusted  entirely  to  the 
Ordinary,  otherwise  notice  to  the  administrator  would  be  re- 
quired. .The  least  that  should  be  required  before  such  an  order 
should  be  vacated,  would  be  proof  that  the  applicant  for  the 
order  had  no  claim.  . 

It  is  objected  to  the  first  order,  that  no  security  for  costs  was 
required.  My  proposition  is  that  this  is  not  required  by  law, 
or  by  any  rule  of  the  Ordinary,  or  the  Prerogative  Court.  Now, 
can  au  order  be  set  aside  for  irregularity  in  this  respect,  when 
no  bond  or  security  for  costs  is  required  by  law?  If  the  late 
Ordinary,  when  moved  to  vacate  the  first  order,  had  required  a 
bond,  it  would  have  been  right.  If  the  Ordinary  here  now 
should  require  a  bond,  we  are  ready  to  give  it.  It  is  a  matter 


PREROGATIVE  COURT. 


Administration  bond  of  Eden  S.  Webster. 


of  discretion  with  the  Ordinary,  whether  he  will  require  a  bond 
or  not.  I  differ  also  as  to  the  character  of  the  bond,  if  given. 
The  form  of  the  bond  is  for  the  indemnity  of  the  Ordinary 
against  his  liability  for  costs. 

Again,  it  is  said  that  the  application  should  be  verified.  This 
is  not  required  ;  not  a  case  is  to  be  found  on  file  in  which  it  was 
done.  The  statute  forbids  the  idea  of  verification  ;  it  is  to  be 
on  request.  The  Ordinary  has  power  now  to  make  any  addi- 
tional order.  Security  is  sometimes  required,  and  sometimes 
not.  The  bond  is  to  protect  the  Ordinary. 

The  next  proposition  is  equally  clear.  Whether  the  first  order 
was  right  or  wrong,  the  order  vacating  it  was  wrong.  I  main- 
fain  that  there  was  no  person  before  the  Ordinary  who  had  a 
right  to  make  the  application  to  vacate  the  first  order. 

THE  ORDINARY.  The  complaint  against  the  order  for 
prosecuting  the  bond  is  that  it  was  made  without  petition  ; 
without  any  verification  of  the  facts  on  which  it  was  applied 
for  ;  without  bond  to  indemnify  the  Ordinary  against  costs ;  and 
without  its  being  made  to  appear  that  the  application  for  the 
order  was  made  at  the  instance  of  any  party  aggrieved  ;  and 
under  this  last  head  of  complaint  it  was  further  complained,  in 
argument,  that  no  forfeiture  of  the  bond  was  made  to  appear 
to  the  Ordinary.  The  order  was  so  made,  but  it  was  made  to 
appear  to  the  Ordinary,  on  the  application  to  him  for  the  order, 
that  the  administrator  had  failed  to  comply  with  that  part  of  the 
condition  of  the  bond  which  required  him  to  make,  or  cau.se  to 
be  made,  a  just  and  true  account  of  his  administration  within 
twelve  calendar  months  from  the  date  of  the  bond.  This 
was,  no  doubt,  the  ground  on  which  the  Ordinary  made  the 
order.  . 

On  the  application  of  a  proper  person,  an  order  for  the  prose- 
cution of  an  administration  bond  may  be  made  on  this  ground  ; 
though  the  Ordinary  might  not  feel  constrained  in  all  cases  to 
make  it  on  this  ground  alone.  Few  estates  are  or  can  be  settled 
within  the  year;  and  though  the  administrator  might,  and 
ought  to  state  an  account  within  the  year,  as  far  as  he  has 
goiM-,  (see  1  Salk.  316,)  yet  the  omission  to  do  this  is  not  so 
serious  a  dereliction  of  duly  as  should  constrain  the  Ordinary,  in 


JUNE  TERM,  1845.  97 

Administration  bond  of  Eden  S.  Webster. 

all  cases,  to  order  a  prosecution  of  the  bond  for  that  cause 
alone.  In  applications  founded  on  that  ground  alone,  the  Ordi- 
nary exercises  his  discretion.  Great  vexation  and  expense 
might  be  produced  to  little  purpose,  by  a  prosecution  for  that 
jause  alone.  In  this  case,  the  Ordinary,  in  the  exercise  of  his 
discretion,  made  the  order  on  the  ground  above  stated. 

No  complaint  could  be  made  against  the  order  to  prosecute, 
on  the  ground  that  no  forfeiture  was  made  to  appear.  The 
want  of  a  petition  and  verification  of  facts,  and  of  a  bond  to 
indemnify  him  against  costs,  are  not  grounds  on  which  the  ob- 
ligors in  the  bond  can  come  before  the  Ordinary  and  ask  him  to 
vacate  his  order  to  prosecute.  These  were  matters  for  the  con- 
sideration of  the  Ordinary,  on  the  application  for  the  order  to 
prosecute.  It  has  not  been  the  practice,  as  far  as  I  can  learn, 
to  verify  the  petition- by  affidavit. 

I  am  not  apprised  of.  the  grounds  on  which  the  order  to  pros- 
ecute was  vacated.  The  want  of  a  bond  of  indemnity  may 
have  had  its  influence  ;  but  I  am  not  prepared  to  say  it  should 
have  been  vacated  on  that  ground. 

The  inquiry  in  the  mind  of  the  Ordinary  who  vacated  the 
order  to  prosecute,  was,  no  doubt,  whether  the  application  for 
that  order  was  made  by  a  proper  person.  There  is  nothing 
connected  with  the  order  to  prosecute,  to  show  on  whose  appli- 
cation it  was  made,  except  the  words  used  in  the  order  itself: 
"  Upon  the  request  of  Felix  Handequin,  let  the  administration 
bond,"  &c. ;  and  nothing  appears  on  the  papers  exhibited  to  the 
Ordinary  on  that  application,  to  show  who  Felix  Handequin  was. 

The  application  must  be  made  by  some  person  aggrieved. 
The  language  of  the  statute  is,  that  the  Ordinary  may  cause 
the  bond  to  be  prosecuted  "at  the  request  of  any  party  aggrie- 
ved." Was  it  shown  to  the  Ordinary,  on  the  application  for  the 
order  to  prosecute,  that  Handequin  was  a  party  grieved  ? 

A  judgment  creditor  is  a  party  grieved  by  the  failure  of  the 
administrator  to  comply  with  the  conditions  of  his  bond.  13 
Johns.  Rep.  437.  Is  one  having  only  a  demand  in  pais,  to  be 
considered  a  party  grieved  ?  If  the  non-payment  of  a  demand 
iiipaisis  no  breach  of  the  bond,  is  the  Ordinary,  without  notice 
to  the  administrator,  (no  notice  is  ever  given,)  and  without 
knowing  or  inquiring  whether  the  demand  is  disputed  or  not, 


PEEROGATIVE  COURT. 


Administration  bond  of  Eden  S.  Webster. 


to  consider  the  party  applying  for  the  bond  a  party  aggrieved, 
merely  because  he  presents  a  claim  against  the  estate  ?  To  one 
who  is  a  creditor,  or,  in  the  language  of  Ld.  Mansfield  in  the 
case  in  Cowper,  to  one  who  has  a  right,  it  is  ex  debito  to  grant 
the  liberty  of  suing  the  bond  ;  to  one  who  has  no  right,  it  is 
ex  debito  to  refuse  it. 

Now,  whether  one  is  a  creditor  or  not,  has  a  right  or  not, 
may  be  the  very  question  which  the  administrator  insists  shall 
be  tried  and  decided  by  the  judgment  of  the  proper  tribunal. 
The  fact  of  there  being  a  forfeiture  of  the  bond  for  failure  of 
making  an  inventory  or  account,  does  not  decide  that  the  parly 
applying  for  leave  to  prosecute  the  bond  is  a  party  grieved.  By 
the  language  of  the  act,  there  must  be  a  forfeiture,  and  a  party 
aggrieved. 

Without  being  able  to  say  what  has  been  the  practice 
in  this  respect,  if  there  has  been  any  uniform  practice,  I 
think  that,  as  a  general  rule,  the  Ordinary  should  not  order  the 
prosecution  of  the  bond,  except  at  the  instance  of  a  judgment 
creditor  ;  but  I  am  unwilling  to  say  that  this  rule  should  be  uni- 
formly adhered  to.  Much  will  rest,  in  these  applications,  in  the 
discretion  of  the  Ordinary.  Cases  may  be  supposed  in  which, 
from  the  nature  of  the  breach,  as  great  lapse  of  time  without 
inventory  or  without  accounting,  or  palpable  conversion  of  the 
estate  by  the  administrator  to  his  own  private  use,  leaving  nu- 
merous debts  unpaid,  the  Ordinary  would  act  on  the  petition  of 
a  person  claiming  to  be  a  creditor,  without  judgment,  on  being 
satisfied  of  the  facts  in  such  way  as  he  might  require. 

I  have  said  more  than  was  necessary  for  the  decision  of  the 
question  now  before  me.  The  question  is,  whether  the  Ordinary 
will  now  vacate  the  order  of  July,  1844,  which  vacated  the 
original  order  for  prosecution. 

The  ground  on  which  I  felt  and  expressed  an  unwillingness 
to  do  so,  when  the  matter  was  first  moved,  in  the  absence  of  the 
opposing  counsel,  was  shortly  this  :  The  Ordinary  first  grants 
the  order  to  prosecute;  suit  is  instituted  in  the  Supreme  Court, 
and  progressed  in  for  a  year,  more  or  less.  The  Ordinary  then, 
on  application,  vacates  the  order  for  prosecution  ;  thus,  in  effect, 
asking  the  Supreme  Court  to  dismiss  the  suit  before  them.  That 
court,  on  the  production  before  them  of  the  vacating  order,  dis« 


JUNE  TERM,  1845.  99 


Batton  et  al.  v.  Allen  et  al. 


miss  the  suit.  This  was  done  in  September  Term,  1844.  The 
Ordinary  is  now  asked  to  vacate  the  vacating  order,  and  let  the 
original  order  for  prosecution  stand,  to  the  end  that  the  S'ipreme 
Court  may  be  then  asked  to  restore  the  suit  and  permit  it  to  pro- 
ceed. If  the  same  individual,  as  Ordinary,  had  made  both  or- 
ders, could  he,  with  any  propriety,  make  the  one  now  asked  ? 
I  think  not,  and  counsel  on  both  sides  have  agreed  that  the 
matter  is  to  be  settled  on  that  principle. 

It  struck  me,  when  the  matter  was  first  moved,  as  being  de- 
cidedly better  that  a  new  application  for  leave  to  prosecute 
should  be  made,  and  I  am  still  of  that  opinion. 

Motion  denied. 

CITED  in  Green,  Matter  of,  4  Hal.  Ch.  554;  Matter  of  Honnass,  1  McCart. 
495. 


GEORGE  BATTON  ET  AL.  v.  JAMES  L.  ALLEN  ET  AL. 

1.  A  father  had  recovered  a  judgment  against  one  of  his  sons,  and  caused 
an  execution  to  be  issued  thereon  and  put  into  the  hands  of  the  sheriff.  After 
the  son's  death,  the  father  signed  a  writing  at  the  foot  of  the  execution,  in 
these  words:     "I  hereby  discharge  J.  W.  Caldwell,  sheriff,  &c.,  from  all 
liability  whatever  of  the  above-stated  execution,  the  defendant  being  dead, 
and  no  further  proceeding  required  on  the  same."      The  father  afterwards 
died  intestate,  and  there  was  a  balance  of  his  personal  estate,  for  distribution, 
of  about  $14,000,  exclusive  of  the  amount  of  the  said  judgment.  The  deceased 
son  left  three  children,  and  six  children  of  the  intestate  father  survived  him. 
Held,  that  the  said  writing  given  to  the  sheriff  did  not  discharge  the  debt,  so 
as  to  entitle  the  children  of  the  deceased  son  to  an  equal  seventh  of  the  said 
balance,  but  that  the  amount  of  the  debt  should  have  been  added  to  the  .said 
balance,  and  one-seventh  of  the  whole  sum  decreed  to  each  of  the  six  surviv- 
ing children  ;  and  that  the  amount  of  the  debt  should  constitute  so  much  of 
the  seventh  to  be  distributed  to  and  among  the  children  of  the  deceased  son. 

2.  A  note  given  by  a  son  to  a  father,  is  not,  of  itself,  evidence  of  an  ad- 
vancement by  the  father. 

3.  Proof  of  mere  parol  declarations  of  a  father,  that  he  had  fully  advanced 
a  child,  is  not  sufficient  to  establish  an  advancement. 


Michael  Allen,  late  of  the  county  of  Gloucester,  died  intes- 
tate, in  May,  1840,  leaving  six  children  living,  and  three  grand- 
children, the  children  of  his  sou  James,  who  died  before  him. 


100  PREROGATIVE  COURT. 

Button  et  al.  v.  Allen  et  al. 

Henry  Allen,  his  eldest  son,  administered;  and  at  the  October 
Term,  1842,  of  the  Orphans'  Court  of  Gloucester,  made  a  final 
settlement,  by  which  a  surplus  of  $14,870.73  was  found  in  his 
hands  for  distribution.  At  the  December  Term,  1842,  applica- 
tion was  made  to  that  court  to  decree  and  settle  the  distribution 
of  the  surplus.  The  three  grandchildren  claimed  a  full  seventh, 
in  right  of  their  deceased  father.  This  was  resisted  by  the  sur- 
viving children,  on  the  ground  that  James,  the  deceased  son, 
had,  as  they  claimed,  been  advanced  by  the  intestate  in  his  life- 
time. A  judgment  in  favor  of  Michael  Allen,  against  his  son 
James,  for  $700  debt  and  $5  costs,  was  entered  in  the  Common 
Pleas  of  Gloucester,  on  a  bond  and  warrant  of  attorney,  on  the 
15th  of  June,  1835.  Execution  was  issued  on  this  judgment, 
and  put  into  th,e  hands  of  the  sheriff  of  Gloucester,  in  the  life- 
time of  James.  After  the  death  of  James,  Michael  Allen  signed 
a  writing  at  the  foot  of  the  execution,  in  these  words :  "  I 
hereby  discharge  J.  W.  Caldwell,  sheriff,  &c.,  from  all  liability 
whatever  of  the  above-stated  execution,  the  defendant  being 
dead,  and  no  further  proceeding  required  on  the  same." 

Certain  notes  given  by  James  to  his  father,  of  dates  prior  to 
the  bond  and  warrant,  and  against  which  the  statute  of  limita- 
tion had  run,  were  exhibited. 

The  Orphans'  Court,  after  hearing  testimony,  decreed  that 
distribution  of  the  said  surplus  be  made  in  equal  seventh  parts; 
one-seventh  to  each  of  the  six  surviving  children,  and  the  re- 
maining seventh  to  be  divided  equally  among  the  children  of 
the  deceased  son  James.  Neither  the  amount  of  the  said  judg- 
ment, uor  of  the  said  notes,  was  included  in  the  said  surplus. 

From  this  decree  an  appeal  was  taken  by  the  surviving  child- 
ren to  this  court. 

The  respondents,  in  their  answer  to  the  petition  of  appeal, 
say,  first,  that  no  appeal  lies  from  the  said  decree  to  this  court; 
second,  that  the  decree  is  right,  and  ought  to  be  affirmed. 

The  testimony  on  the  part  of  the  surviving  children  is  as 
follows:  • 

Abigail  Stout. — She  heard  the  intestate  say  he  had  advanced 
money  for  his  son  James;  she  does  not  know  that  she  ever 
heard  him  say  how  much ;  heard  him  say  he  did  not  desire  to 


JUNE  TERM,  1845.  101 


Batton  et  al.  v.  Allen  et  al. 


make  a  will;  she  kept  house  for  him  better  than  nine  years; 
she  heard  him  say  he  had  let  James  have  money  before  she 
came  to  live  with  him  ;  she  knew  James  to  get  of  his  father, 
after  she  went  to  live  with  him,  one  hundred  and  ten  dollars  in 
pork  and  forty  dollars  in  cash  ;  she  recollects  intestate's  telling 
her  he  had  advanced  to  James  as  much  as  he  thought  proper  at 
that  time;  he  told  her,  one  day,  that  the  law  made  a  will  good 
enough  for  him. 

Being  cross-examined,  she  said  James  died  about,  six  years 
before  the  time  of  her  examination  as  a  witness;  Michael  Allen 
died  in  1840;  James  was  not  present  at  any  of  the  conversations 
she  had  with  Michael;  Michael  charged  the  one  hundred  and 
ten  dollars  for  the  pork,  to  James,  in  a  book  or  note — she  thinks 
a  note;  she  is  pretty  certain  he  took  a  note;  all  she  knows  about 
James' getting  the  pork,  is  what  Michael  told  her;  she  never 
saw  the  note  or  book  account;  she  heard  Michael  say  James  got 
the  forty  dollars;  she  did  not  see  it  counted,  but  she  was  in  the 
house. 

Mary  Moore  testified  that  she  heard  Michael  say  he  had  given 
James  all  he  expected  to  give  him  ;  that  he  had  set  him  up 
twice;  that  he  had  not  done  as  well  as  he  could  wish.  On 
cross-examination,  she  said  this  conversation  took  place  about 
eleven  years  before. 

Jesse  C.  Chew. — Michael  Allen  has  said  to  me  that  he  had 
advanced  liberally  to  James.  Being  cross-examined,  he  says 
he  thinks  Michael  told  him  he  set  out  Henry  Allen,  another 
son,  with  some  money  and  a  horse,  when  he  left  his  house ; 
Enoch  Allen,  another  son,  was  about  thirty  years  old  when  he 
died  ;  he  had  been  away  from  his  father's  several  years  before 
he  died;  his  mind  was  impaired,  and  his  father  boarded  him 
out;  witness  understood  the  old  gentleman  that  he  paid  for 
the  board  of  Enoch;  witness  knew  three  of  the  daughters: 
they  lived  with  their  father  several  years  after  they  were  grown; 
witness  understood  they  received  an  outfit  when  they  left  their 
lather's  house,  but  does  not  know  what  it  was. 

Louisa  Batton. — She  lived  in  the  house  of  Michael  Allen 
about  two  years  before  he  died;  she  heard  Michael  say  he  had 
let  James  have  a  good  deal  of  money,  and  as  much  as  he  in- 
tended to  let  him  have,  till  he  saw  whether  there  was  any  more 


102  PREROGATIVE  COURT. 

Batton  et  al.  v.  Allen  et  al. 

coming  to  him  or  not;  he  said  he  thought  lie  had  let  him  have 
as  much  as  he  would  be  able  to  let  the  other  children  have — as 
much  as  would  be  coming  to  the  other  children. 

Being  cross-examined,  she  says  she  is  seventeen  years  of  age; 
she  is  hired  at  Mr.  Sherwin's,  who  married  one  of  the  daughters 
of  Michael  Allen ;  the  conversation  took  place  at  Michael 
Allen's,  about  three  years  ago  last  summer  ;  there  was  no  per- 
son present ;  she  was  in  the  kitchen  at  the  time ;  he  has  told  me 
that  several  times;  she  understood  he  was  eighty  or  eighty-one 
years  old  when  he  died;  he  spoke  to  her  frequently  about  his 
other  business ;  she  was  hired  at  Michael  Allen's. 

Bowman  Sailer. — Michael  Allen  stated  to  witness  that  his 
property  at  Barnesborough  stood  him  in  about  five  thousand 
dollars;  that  he  had  advanced  money  to  James,  and  had  got  no 
rent  for  the  time  James  lived  there;  Henry  wished  his  father, 
Michael,  to  take  the  note  which  he,  Henry,  held  against  James, 
and  keep  it  out  of  the  share  of  his  estate  that  would  be  coming 
to  James  after  Michael's  decease;  Michael  held  some  writings 
against  Henry,  for  about  the  same  amount  that  Henry  held 
against  James; 'and  Michael  said  he  went  down  to  Salem  and 
^igned  Henry's  writings  away,  and  made  him  very  angry,  and 
that  he  got  a  sharp  letter  from  Henry  about  it. 

The  testimony  on  the  part  of  the  grandchildren  is  as  fol- 
lows : 

Abigail  Stout,  the  first  witness  called  for  the  surviving  chil- 
dren, being  called  on  the  part  of  the  grandchildren,  testified  as 
follows:  She  remembers  when  James  went  to  Natchez;  when 
he  left  Barnesborough,  she  heard  Michael  say  James  had  as- 
signed him  notes,  but  she  cannot  tell  the  amount ;  Michael 
appeared  to  be  satisfied  while  James  lived  at  Barnesborough  ; 
Michael  said  these  notes  were  assigned  to  him  by  James  to  col- 
lect, and  pay  him  as  far  as  they  would  go;  he  did  not  say  all ; 
he  did  not  say  they  would  pay  all  ;  he  did  not  say  whether  he 
was  satisfied  or  not;  he  did  not  express  any  dissatisfaction; 
tins  was,  perhaps,  three  weeks  before  James  left  for  Natchez; 
Michael  and  James  were  together  several  times,  shortly  before 
James  went  to  Natchez,  about  their  business;  Michael  showed 
her  some  notes;  he  did  not  show  her  all;  Michael  told  her 
James  had  assigned  him  uotes  that  would  satisfy  him  for  what 


JUNE  TERM,  1845.  103 


Batton  et  al.  v.  Allen  et  al. 


he  had  let  James  have,  in  part;  he  did  not  say  all.  Cross- 
.-xamined,  she  says  she  never  heard  Michael  say  he  had  given 
James  all  he  expected  he  would  get;  or  that  James  would  get 
no  more,  unless  the  other  heirs  agreed  to  give  him  more;  she 
has  heard  him  say  he  did  not  wish  to  give  James  any  more 
till  he  knew  what  was  coming  to  him  of  his  share  of  his 
estate. 

Lydia  Allen,  sworn  on  the  part  of  the  grand-children,  says? — 
She  is  the  widow  of  James ;  Michael  and  James  were  fre- 
uently  together  before  James  went  South,  talking  about  their 
business;  she  heard  Michael  say  that  James  owed  him  money, 
and  he  wished  him  to  pay  it;  she  knows  James  assigned  him 
notes  at  different  times ;  these  notes  were  assigned  shortly 
before  James  went  South ;  she  saw  Michael  sign  a  paper  at 
Swedesborough. 

Jeffers  and  G.  D.  Wall,  for  the  appellants. 

.4tf 
Browning  and  H.  W.  Green,  for  the  appellees. 

Cases  cited  on  the  part  of  the  appellants  :  1  Fes.  17;  1  Mad. 
Ch.  506 ;  2  P.  W.  560. 

THE  CHANCELLOR.  No  money  or  other  property  was  ad- 
vanced by  the  father  to  James,  as  an  advancement,  in  form. 
Whatever  he  let  James  have,  he  took  his  note  or  obligation  for ; 
he  put  it  in  the  shape  of  a  debt  front  James  to  him.  The  testi- 
mony on  the  part  of  the  surviving  children,  even  if  all  admis- 
sible, is  of  entirely  too  indefinite  a  character  to  establish  an 
advancement.  Jt  was  not  claimed,  I  think,  at  the  bar,  that 
proof  of  mere  parol  declarations  of  a  father,  that  he  had  fully 
advanced  a  child,  would  be  sufficient.  See  Toller  397;  1 
Atk.  407. 

The  counsel  for  the  appellants  rely,  first,  on  the  notes  given 
by  James  to  his  father.  A  note  given  by  a  son  to  the  father  is 
not,  of  itself,  evidence  of  an  advancement  by  the  father.  It  is 
evidence  of  indebtedness  by  the  son.  The  amount  of  the  note 
may  be  recovered  back  from  the  son,  either  by  the  father,  in  his 
lifetime,  or  by  his  personal  representatives,  after  his  decease ; 


104  PREROGATIVE  COURT. 

Batton  et  al.  v.  Allen  et  al. 

but  no  part  of  an  advancement  can  be  recovered  back.  The 
very  object  of -the  father  in  taking  the  note  should  be  presumed 
to  be,  to  avoid  the  inequality  which  would  result,  if  his  personal 
estate  at  his  death  should  be  insufficient  to  give  to  each  of  his 
other  children  an  equal  sum.  It,is  not  a  gift;  the  father  does 
not  divest  himself  of  the  property.  This  is  not  opposed  to  the 
case  of  Wanmaker  v.  Van  Euskirk,  in  Saxton  688.  The 
opinion  of  the  Chancellor  in  that  case,  that  the  amount  of  the 
bond  was  an  advancement,  was  founded  on  the  peculiar  circum- 
stances of  the  case. 

It  was  contended  that  the  notes  exhibited  in  this  case  should 
be  considered  as  advancements,  because  they  are  outlawed.  If 
nothing  appeared  but  the  fact  that  these  notes  were  found 
among  the  papers  of  the  intestate  after  his  death,  and  that  they 
were  all  outlawed,  and  could  not  therefore  be  made  available 
as  debts,  it  might  be  a  serious  inquiry  what  would  be  the  proper 
presumption ;  whether  the  presumption  of  payment,  arising 
from  lapse  of  time,  or  the  presumption  that  the  father  omitted 
to  collect  them,  or  have  them  renewed,  on  the  ground  that  he 
was  willing  the  son  should  retain  the  amount  as  an  advance- 
ment. But,  in  my  view,  it  is  not  necessary  to  discuss  that  ques- 
tion in  this  case.  Under  the  admissions  and  acts  of  the  intes- 
tate, it  would  certainly  be  unsafe  to  declare  that  the  whole 
amount  of  these  notes  should  be  considered  either  advancement 
or  debt.  It  appears  that,  shortly  before  James  went  to  the  South, 
he  assigned  notes  to  his  father,  in  part  payment  of  what  he 
owed  him.  He  also  gave  a  bond  to  his  father  for  $700,  and  a 
warrant  of  attorney  for  the  confession  of  a  judgment  thereon  ; 
and  judgment  was  entered  thereon  accordingly.  There  is  no 
evidence  that  the  bond  was  given  on  a  new  or  separate  advance 
of  money.  The  transaction  lias  the  appearance  of  a  settlement 
between  them  of  the  amount  due  from  James,  and  the  confession 
of  a  judgment  for  the  amount.  I  am  unwilling  to  consider  the 
notes  as  evidence,  either  of  advancement  to  James,  or  of  debt 
due  from  him  to  the  estate. 

There  can  be  no  doubt  that  James,  in  his  lifetime,  and  his 
estate,  after  his  death,  was  indebted  to  his  father,  the  intestate, 
in  the  amount  of  the  judgment.  If  this  debt  had  been  released 
by  the  father  to  James,  in  his  lifetime,  it  might,  perhaps,  be 


JUNE  TERM,  1845.  105 

Button  et  al.  v.  Allen  et  al. 

considered  an  advancement.  Gilbert  v.  Wetherell,  2  Sim.  and 
Stu.  254.  But  it  remained  a  debt  from  the  estate  of  James  to 
his  father,  at  the  father's  death.  The  endorsement  made  by 
Michael  Allen  on  the  execution,  discharging  the  sheriff  "from 
all  liability  whatever  of  the  execution,  the  defendant  being  dead 
and  no  further  proceedings  required  on  the  same,"  did  not  dis- 
charge the  debt,  so  as  to  entitle  James'  children  to  an  equal 
seventh  of  the  surplus,  exclusive  of  the  amount  of  this  judg- 
ment debt.  And  this  discharge  of  the  sheriff  was  not  an  ad- 
vancement to  James,  for  James  was  then  dead. 

For  the  purpose  of  settling  the  distribution,  the  amount  of 
this  judgment  debt  should  have  been  added  to  the  said  surplus  ; 
and  should  form*  a  part  of  the  distributive  share  of  the  three 
grandchildren,  who  represent  their  deceased  father,  James.  The 
decree  of  distribution  made  by  the  Orphans'  Court,  was  made 
without  respect  to  this  judgment  debtj  and  the  children  of 
James  were  decreed  to  be  entitled  to  an  equal  seventh  of  the 
surplus,  though  that  surplus  did  not  include  the  judgment  debt. 

I  think  the  decree  is  erroneous.  The  Orphans'  Court  should 
have  added  the  amount  of  the  judgment,  with  interest  thereon 
to  the  death  of  Michael  Allen,  to  the  surplus  found  by  the  ac- 
count of  the  administrator  as  stated ;  and  have  decreed  that 
one-seventh  of  the  whole  sum  be  paid  to  each  of  the  surviving 
children  ;  and  that  the  judgment  against  James  be  satisfied, 
and  the  residue  of  the  money  in  the  administrator's  hand  be 
paid  to  the  children  of  James,  equally  among  them.  A  decree 
to  this  effect  will  be  made  by  this  court. 

VOL.  i.  Q 


106  PREROGATIVE  COURT. 


Anderson  et  al.  v.  Hendrickson. 


JOSEPH  B.  ANDERSON  ET  AL.  v.  JfARY  HENDRICKSON,  SUR- 
VIVING EXECUTOR  OF  THE  WILL  OF  BENJAMIN  HEN- 
DRICKSON, DECEASED. 

T  The  testator  gave  to  his  wife  the  use  and  interest  of  all  his  personal  estate 
during  her  widowhood,  and  also  the  use  and  possession  of  all  his  real  estate 
during  her  widowhood,  and  as  is  in  his  will  after  directed  and  limited,  in  lieu 
of  dower ;  and  directed  that,  on  the  death  or  marriage  of  his  widow,  before 
his  youngest  daughter  attained  the  age  of  eighteen  years,  the  surviving  execu- 
tor should  sell  the  personal  property  bequeathed  to  the  widow,  and  place  the 
proceeds  at  interest ;  and  directed  his  Read  farm  to  be  sold  when  his  youngest 
daughter  attained  the  age  of  eighteen,  or  sooner,  if  his  executors,  or  the  sur- 
vivor of  them,  should  think  it  most  for  the  benefit  of  the  estate ;  and  that 
whenever  the  sale  of  the  real  and  personal  estate  thus  directed  to  be  sold 
should  be  made,  the  same  should  be  placed  at  interest  and  be  equally  divided 
among  his  seven  daughters,  share  and  share  alike,  and  paid  to  them  when 
they  should  respectively  attain  the  age  of  eighteen  years  ;  and  devised  hia 
homestead  farm  to  his  son  when  he  should  attain  the  age  of  twenty-one  years; 
and  directed  that  in  case  his  son  should  die  without  issue  before  he  attained 
the  age  of  twenty-one,  the  said  homestead  should  be  sold,  at  the  discretion  of 
his  executors,  or  the  survivor  of  them,  and  the  proceeds  thereof  be  placed  at 
interest  and  divided  among  his  surviving  children,  share  and  share  alike,  and 
paid  in  the  manner  before  directed ;  and  appointed  the  widow  and  another 
executors.  Held,  that  on  a  sale  of  the  Read  farm  by  the  widow,  as  surviving 
executor,  before  the  youngest  daughter  attained  the  age  of  eighteen,  each 
daughter  then  under  eighteen  was  entitled,  on  attaining  that  age,  to  her  share 
of  the  proceeds  of  the  sale,  without  interest ;  and  that  the  daughters  who  had 
then  attained  eighteen  were  entitled  to  their  respective  shares  of  the  proceeds 
immediately. 

Benjamin  Hendrickson,  by  his  will,  dated  May  25th,  1828, 
and  proved  in  February,  1829,  gave  and  bequeathed  to  his  wife, 
Mary,  the  use  of  such  of  his  movable  estate  as  she  might  select, 
and  also  the -interest  of  all  his  other  personal  estate,  during  her 
widowhood;  and  also  the  use  and  possession  of  all  the  real  estate 
whereof  he  might  die  seized,  to  have  and  to  hold  during  her 
widowhood,  and  as  is  thereinafter  directed  and  limited;  de- 
claring the  bequests  aforesaid  to  be  made  in  lieu  of  dower,  and 
in  the  full  trust  and  confidence  that  she  would  bring  up,  sup- 
port, maintain  and  educate  in  a  proper  manner,  his  children, 
(naming  them,)  and  provide  for  them  in  the  best  manner,  and 


JUNE  TERM,  1845.  107 

Anderson  et  al.  v.  Hendrickson. 

watch  over  them  with  maternal  tenderness  and  affection  ;  and 
appointed  her  their  guardian.  The  second  item  in  the  will 
directs  that  whatever  movable  estate  his  wife  might  not  choose 
to  keep,  should  be  sold,  and  the  proceeds  thereof  applied,  in  the 
first  place,  to  the  payment  of  debts  and  expenses,  and  the  resi- 
due thereof  be  placed  at  interest,  and  the  interest  be  paid  annu- 
ally to  his  said  wife  during  her  widowhood.  The  fourth  item 
directs  that  in  case  his  wife  should  die  or  marry  befora  his 
youngest  child  attains  the  age  of  eighteen,  the  executors  named 
in  the  will  should  sell  all  the  personal  estate  bequeathed  to  his 
wife  as  aforesaid,  and  place  the  proceeds  at  interest.  The  fifth 
item  directs  his  executors,  or  the  survivor  of  them,  whenever 
his  youngest  daughter  attains  the  age  of  eighteen,  to  sell  the 
Read  farm  (a  part  of  his  real  estate)  in  such  manner  as  they, 
or  the  survivor  of  them,  should  deem  most  for  the  benefit  of  his 
estate ;  and  in  case  they,  or  the  survivor  of  them,  should  con- 
sider it  most  for  the  benefit  of  his  estate  to  sell  the  same  sooner, 
they,  or  the  survivor  of  them,  might  sell  the  same  at  any  other 
time.  The  sixth  item  is  as  follows:  "  Whenever  the  sale  of  the 
real  and  personal  estate  thus  directed  to  be  sold,  shall  be  made, 
then  I  order  and  direct  that  the  same  shall  be  placed  at  interest, 
on  good  lauded  security,  and  be  equally  divided  among  my 
before-mentioned  daughters,  share  and  share  alike,  and  paid  to 
them  when  they  respectively  attain  the  age  of  eighteen  years." 
He  then  devises  his  homestead  farm  to  his  son  Benjamin,  when 
he  shall  attain  the  age  of  twenty-one  years  ;  to  hold  to  him, 
his  heirs  and  assigns  forever,  subject  to  certain  privileges  of  his 
wife,  if  she  should  be  then  living  his  widow,  to  wit,  the  choice 
of  two  rooms,  and  her  comfortable  support  by  the  said  Benja- 
min during  her  widowhood;  and  in  case  Benjamin  should  die 
without  issue  before  he  attained  the  age  of  twenty-one  years, 
then  the  said  farm  to  be  sold,  at  the  discretion  of  his  executors, 
or  the  survivor  of  them,  and  the  proceeds  thereof  be  placed  at 
interest,  and  divided  among  his  surviving  children,  share  and 
share  alike,  and  paid  in  the  manner  before  directed  ;  and  Ed- 
ward S.  Mcllvaine  and  his  said  wife  were  appointed  executor 
and  executrix  of  the  will. 

The  testator  left  seven  daughters  and  a  son.     In  April,  1837, 
before  which  time  five  of  the  daughters  had  attained  eighteen 


108  PREROGATIVE  COURT. 

Anderson  et  al.  v.  Hendrickson. 

years,  the  widow,  as  surviving  executor,  sold  the  Read  farm. 
Julia,  the  youngest  daughter,  attained  the  age  of  eighteen  in 
December,  1842.  The  farm  was  sold  for  $3000.  The  ac- 
count of  the  executrix,  after  being  audited  and  stated  by  the 
surrogate  of  Mercer,  was  reported  by  him  to  the  Orphans'  Court 
of  that  county,  at  the  term  of  September,  1844,  of  that  court. 

In  that  account,  the  executrix  is  charged  with  the  proceeds 
of  the  sale  of  the  Read  farm,  sold  April  llth,  1837,  $3000; 
and  interest  on  the  same  from  December  27th,  1842,  the  day  on 
which  the  youngest  daughter  came  of  age,  $270. 

This  account  was  excepted  to  before  the  Orphans'  Court,  by 
the  persons  who  are  now  the  appellants  in  this  court ;  and  the 
.exceptions  were  overruled,  and  the  account  was  allowed  by  the 
decree  of  the  Orphans'  Court,  as  stated  by  the  surrogate. 

The  exceptions  to  the  account  are — 

1st.  That  the  accountant  hath  only  charged  herself  with  in- 
terest on  said  $3000  from  December  27th,  1842,  whereas  she 
should  have  charged  herself  with  interest  on  the  same  from 
April  llth,  1837,  the  day  of  the  sale  of  the  said  farm. 

2d.  That  said  account,  both  in  the  charge  and  discharge 
thereof,  is  in  divers  particulars  erroneous,  and  ought  to  be 
re-stated. 

The  case  is  here  on  appeal  from  the  decree  of  the  Orphans' 
Court. 

S.  O.  Potts,  for  the  appellants,  cited  2  Pow.  Dev.  4,  5. 

H.  W.  Green,  for  the  respondent,  cited  6  Cruise's  Dig.  292 ; 
2  Roper  on  Leg.  329  ;  2  Bl.  Rep.  738 ;  2  Taunt.  113. 

THE  CHANCELLOR.  The  question  is  when  and  how  the  dis- 
tribution of  the  proceeds  of  the  sale  of  the  Read  farm,  sold  by 
the  wklow  as  surviving  executor,  before  the  youngest  daughter 
had  attained  eighteen  years,  and  after  some  of  the  daughters 
had  attained  that  age,  is  required,  by  this  will,  to  be  made. 

The  particular  clause  in  the  will  providing  for  the  distribu- 
tion, is  in  the  sixth  item,  and  is  as  follows  :  "  Whenever  the 
sale  of  the  real  and  personal  estate  thus  directed  to  be  sold  shall 
be  made,  then  I  order  and  direct  that  the  same  shall  be  placed 


JUNE  TERM,  1845.  109 


Anderson  et  al.  v.  Hendrickson. 


at  interest,  on  good  landed  security,  and  be  equally  divided 
among  my  before-mentioned  daughters,  share  and  share  alike, 
and  paid  to  them  when  they,  respectively,  attain  the  age  of 
eighteen  years. 

It  is  contended  on  the  part  of  the  appellants,  that  the  proceeds 
of  the  sale,  with  the  interest  thereon  from  the  time  of  the  sale,  are 
to  be  divided,  &c.,  and  paid  to  them  when  they,  respectively, 
attain  eighteen  years. 

It  is  contended  on  the  part  of  the  respondent,  that  the  widow 
is  entitled  to  have  the  whole  proceeds  kept  at  interest,  and  to 
receive  the  interest  thereon  till  the  youngest  daughter  attains 
eighteen  years. 

What  is  the  meaning  of  the  particular  clause?  What  does 
it  require  to  be  divided,  &c.  and  paid  to  the  daughters  when 
they  respectively  attain  eighteen  years?  Is  it  the  proceeds  of 
the  sale  and  the  interest  thereon  ?  If  this  is  the  provision,  (it 
is  so  contended  for  the  appellants,)  it  would  not  matter  to  the 
widow  and  executrix  when  the  principal  and  interest  were  to  be 
divided  and  paid  ;  whether  to  each  daughter  as  she  attained 
eighteen  years,  or  to  and  among  all  when  the  youngest  attained* 
eighteen  years. 

The  words  of  the  clause  do  not  require  this  reading  of  it ;  and 
certainly  the  intention,  as  derivable  from  the  whole  will,  is  op- 
posed to  this  reading  of  the  particular  clause.  The  first  part  of 
the  will  gives  the  widow  the  use  of  all  the  estate,  real  and  per- 
sonal, during  widowhood,  and  as  thereinafter  directed  and 
limited.  This  is  sufficient  to  give  her  the  use  of  the  Read  farm, 
and  the  interest  of  the  proceeds  of  t-he  sale  of  it,  until  she  is 
restrained  from  or  limited  in  the  use  or  reception  of  the  interest, 
by  some  positive  subsequent  provision.  But  there  is  no  provision 
that  the  interest  accumulate,  or  that  the  interest,  as  well  as  the 
principal,  shall  be  divided  among  the  girls  when  they  respect- 
ively attain  eighteen  years.  The  construction,  then,  of  the  par- 
ticular clause,  as  it  seems  to  me,  is,  that  it  requires  the  widow 
to  pay  to  each  daughter  her  share  of  the  principal  money 
arising  from  the  sale  of  the  Read  farm,  when  she  attains 
eighteen  years ;  the  widow  to  receive,  in  the  meantime,  the 
interest  on  the  whole,  or  such  part  of  the  proceeds  of  the  sale, 
as  shall  from  time  to  time  remain  at  interest. 


110  PREROGATIVE  COURT. 

Anderson  et  al.  v.  Hendrickson. 

Taking  this  to  be  the  true  construction  of  the  particular 
clause,  the  next  inquiry  is,  is  there  any  reason,  derivable  from 
other  parts  of  the  will,  or  from  the  will  as  a  whole,  sufficiently 
imperative  to  constrain  the  court  to  depart  from  the  language 
and  import  of  the  particular  clause,  and  to  adjudge  that  the 
intention  of  the  testator  was,  that  the  widow  should  have  the 
interest  on  the  whole  amount  of  the  proceeds  of  the  sale  till  the 
youngest  daughter  should  attain  eighteen  years,  (as  is  contend- 
ed by  the  counsel  for  the  respondent,)  notwithstanding  the  ex- 
press direction  of  the  particular  clause,  that  the  same  shall  be 
divided  among  the  daughters,  share  and  share  alike,  and  paid 
to  them  when  they  respectively  attain  eighteen  years  ? 

The  fourth  item  of  the  will  directs  that  if  the  widow  die  or 
marry  before  Julia  (the  youngest  daughter)  attains  eighteen 
years,  the  surviving  executor  shall  sell  all  the  personal  estate, 
and  put  the  proceeds  at  interest ;  and  here  the  clause  stops. 
The  latter  part  of  the  fifth  item  provides,  that  a  sale  of  the 
Read  farm  may  be  made  before  Julia  attains  eighteen.  We 
have  thus  both  real  and  personal  property  that  may  be  sold  be- 
fore Julia  attains  eighteen,  the  proceeds  of  both  of  which  are 
subject  to  the  provisions  of  the  sixth  item,  which  directs  that 
whenever  the  sale  of  the  real  and  personal  estate  thus  directed 
to  be  sold,  shall  be  made,  the  same  shall  be  placed  at  interest. 
Thus  far,  the  proceeds  of  both  real  and  personal  property  are 
directed  to  be  placed  at  interest.  The  time  and  manner  of  dis- 
tributing both  these  proceeds  is  then  provided  for,  in  one  and 
the  same  manner,  in  one  and  the  same  sentence.  They  are  to 
be  equally  divided  among  his  daughters,  and  paid  to  them  when 
they  respectively  attain  eighteen  years. 

It  was  uncertain  which  of  these  funds  would  exist  before 
Julia  attained  eighteen  ;  or  whether  either  or  both  ;  and  in  this 
uncertainty  they  are  both  subjected  to  the  same  rule.  The  rule 
was  well  suited  to  the  one  fund,  i.  e.,  the  fund  to  arise  from  the 
Bale  of  the  personal  property  on  the  death  or  marriage  of  the 
widow  before  Julia  attained  eighteen.  It  may  not  have  been  so 
well  suited  to  the  other  fund,  i.  e.,  the  fund  which  might  arise 
from  the  sale  of  the  Read  farm  before  Julia  attained  eighteen. 
But  I  do  not  see  that  the  court  is  called  upon,  or  authorized,  to 
make  a  new  will  for  the  testator,  in  this  respect.  By  the  sixth 


JUNE  TERM,  1845.  Ill 

Anderson  et  al.  v.  Hendrickson. 

item,  the  proceeds  are  to  be  placed  at  interest.  This  could  only 
refer  to  a  sale  that  might  be  made  before  Julia  attained  eighteen  ; 
for,  on  her  attaining  that  age,  the  widow's  useceased.  The  farm, 
if  not  sooner  sold,  was  then  to  be  sold  ;  not  for  the  purpose  of 
putting  the  proceeds  at  interest  for  the  widow,  but  for  the  pur- 
pose of  dividing  the  proceeds  among  the  girls.  The  frame  of 
this  item,  thus  far,  brought  to  the  consideration  of  the  testator, 
distinctly,  what  should  be  done  with  the  proceeds  of  the  sale 
that  imight  be  made  of  the  Read  farm  before  *Julia  attained 
eighteen ;  the  proceeds  of  which  were  directed  to  be  placed  at 
interest.  Shall  these  proceeds  not  be  divided  till  Julia  attains 
eighteen?  or  shall  each  daughter  have  her  share  on  attaining 
that  age?  The  clause  answers,  they  shall  be  equally  divided 
among  the  daughters,  and  paid  to  them  when  they  respectively 
attain  eighteen. 

I  see  no  controlling  reason  why  effect  should  not  be  given  to 
this  language;  the  only  differenae  being,  whether  the  widow 
should  lose  the  interest  of  one-seventh  of  the  proceeds,  when 
each  daughter  should  attain  eighteen,  or  enjoy  the  interest  on 
the  whole  till  the  youngest  should  attain  that  age.  The  second 
item  of  the  will  provides  for  the  sale  of  certain  movables,  and 
that  the  proceeds  of  the  sale,  after  paying,  &c.,  be  put  at  in- 
terest, and  expressly  directs  that  the  interest  thereof  be  paid 
annually  to  his  wife  during  her  widowhood.  When,  therefore, 
in  the  clause  under  consideration,  the  testator  omits  such  pro- 
vision, and  employs  language  which,  it  is  adm'tted,  gives  a 
different  rule,  it  would  be  carrying  construction  too  far  to  refuse 
to  give  effect  to  it.  Would  there  have  been  any  reasonable 
objection  to  the  distribution  clause- if  it  had  provided  that  each 
daughter  should  have  her  share  on  attaining  twenty-one?  Ob- 
ligation for  support  would  then  cease.  Shall  we  deny  effect  to 
the  express  language  of  the  testator,  because  he  chooses  to  con- 
eider  eighteen  as  a  proper  age  for  distribution  among  daughters, 
or  an  age  at  which  they  are  likely  to  provide  for  themselves,  or 
be  provided  for  ? 

Again,  it  might  be  that  the  homestead  farm  would  be  con- 
verted into  money  before  Julia  attained  eighteen;  for,  if  Benja- 
min died  without  issue  before  he  attained  twenty-one,  the  will 
directs  the  executors,  or  the  survivor  of  them,  to  sell  the  home- 


112  PREROGATIVE  COURT. 

Anderson  et  al.  v.  Hendrickson. 

stead,  and  put  the  proceeds  at  interest,  and  to  divide  the  same 
among  the  daughters  in  the  same  manner  as  directed  in  refer- 
ence to  the  proceeds  of  the  Read  farm ;  though,  if  Benjamin 
lived,  the  widow  was  to  have  the  use  of  the  homestead  till  he 
attained  twenty-one.  And  this  provision  in  reference  to  the  sale 
of  the  homestead  farm  on  Benjamin's  death  before  twenty-one, 
without  issue,  is  peremptory ;  yet  the  same  rule  is  given  as  in 
reference  to  the  Read  farm,  if  that  should  be  sold  before  Julia 
attained  eighteen.  Here  the  same  question  was  brought  %D  the 
testator's  mind  again,  and  he  gives  the  same  rule  as  to  when  and 
how  the  proceeds  of  this  sale  shall  be  divided  among  the1 
daughters,  i.  e.,  when  they  respectively  attain  eighteen. 

I  am  of  opinion  that  the  decree  of  the  Orphans'  Court  is  erro- 
neous ;  that  each  daughter,  on  attaining  eighteen,  was  entitled 
to  her  share  of  the  principal  sum  arising  from  the  sale  of  the  Read 
farm ;  and  that  the  daughters  who  had  attained  eighteen  at  the 
time  of  the  sale,  were  entitle^  to  their  shares  immediately  ;  and 
'that,  in  reference  to  these  last  shares,  the  executrix  should  have 
been  charged  with  interest  thereon  from  the  time  of  the  sala, 
It  will  be  decreed  acordingly. 


CASES  IN   CHANCERY. 

SEPTEMBER  TERM,  1845. 


GEORGE   LOVETT  v.  DAVID   D.  DEMAREST  AND  WIFE  AND 
ELIZABETH  BOYD. 

1.  A  sold  a  tract  of  land  to  B  for  $9000  ;  $4000  to  be  paid  on  the  delivery 
of  the  deed,  and  the  balance  of  the  consideration  money  to  be  secured  by  a 
mortgage  on  the  premises.     Before  the  deed  was  executed,  it  was  agreed  be- 
tween the  seller  and   purchaser  and  C,  that  if  C  would  lend  the  purchaser 
$2000,  to  enable  him  to  make  the  cash  payment  of  $4000,  a  first  mortgage  on 
the  premises  should  be  executed  by  the  purchaser  to  C  for  the  $2000  to  be 
loaned  by  liim,  and  that  the  mortgage  to  C  should  be  first  recorded.     C  loaned 
the  $2000,  and  the  deed  and  mortgages  were  made  accordingly  ;  and  the 
mortgage  to  C  was  first  recorded.     Afterwards  A  assigned  his  mortgage  to  the 
complainant.     Held  that  C's  mortgage  was  the  first  encumbrance. 

2.  A  certificate  of  the  clerk  of  the  county,  setting  forth  that  the  mortgage  to 
A  was  the  first  and  only  mortgage  on  record,  shown  by  A  to  the  complainant 
when  he  took  the  assignment  of  A's  mortgage,  held  not  to  have  the  effect  of 
giving  priority  to  the  mortgage  assigned  to  the  complainant. 

3.  Every  allegation  of  the  answer  which  is  not  directly  responsive,  but  sets 
forth  matter  in  avoidance  or  bar,  is  denied  by  the  general  replication,  and 
must  be  proved  uliunde. 

This  is  a  foreclosure  bill.  It  states  that,  on  the  24th  of 
May,  1836,  one  John  De  Groot  sold  and  conveyed  to  the  de- 
fendant David  D.  Demarest,  the  premises  described  in  the  bill, 
and  that  Demarest  gave  to  De  Groot  his  bond  of  that  date  for 
$5000,  part  of  the  purchase  money;  and  also  with  his  wife, 
gave  to  De  Groot  the  mortgage  set  forth  in  the  bill,  on  the  prem- 
ises so  sold  and  conveyed,  to  secure  the  payment  of  the  bond. 
That  the  mortgage  was  recorded  in  the  clerk's  office  of  Bergen 

133 


114  CASES  IN  CHANCERY. 

Lovett  v.  Demarest  et  al. 

county  on  the  28th  of  May,  1836.  That,  on  the  3d  of  Novem- 
ber, 1838,  De  Groot  applied  to  the  complainant  to  buy  the  bond 
and  mortgage,  representing  it  to  be  a  purchase  money  mortgage, 
and  a  first  lien  of  record  on  the  premises,  and  ample  security  for 
the  money  mentioned  therein.  That  the  complainant,  confiding 
iu  these  representations,  and  being  willing  to  purchase  the  bond 
and  mortgage,  De  Groot  thereupon,  by  assignment  of  that  date, 
in  consideration  of  $5000  to  him  paid  by  the  complainant,  as- 
signed the  same  to  the  complainant.  That,  on  searching  the 
records,  preparatory  to  filing  the  bill,  the  complainant  first 
learned  that  there  was  on  record  a  mortgage  of  the  same  prem- 
ises, given  by  Demarest  and  his  wife  to  the  defendant  Elizabeth 
Boyd,  for  $2000,  purporting  to  bear  date  the  same  24th  of  May, 
1836,  and  to  have  been  registered  the  25th  of  that  month.  The 
bill  claims  that  the  last-mentioned  mortgage  is  subsequent  to 
the  complainant's  in  fact  and  in  law  ;  and  charges  that  Eliza- 
beth Boyd  took  her  mortgage  with  full  notice  of  the  mortgage 
of  De  Groot. 

The  answer  of  Elizabeth  Boyd  states  that,  before  the  day  of 
the  date  of  the  mortgage  to  De  Groot,  Demarest  applied  to  her 
to  lend  him  $2000,  stating  that  he  was  about  to  buy  the  prem- 
ises from  De  Groot  for  $9000;  that  he  was  to  pay  $4000 
of  the  purchase  money  down  ;  that  he  had  but  $2000  in  cash, 
and  that  if  she  would  lend  him  $2000,  De  Groot  would  agree 
that  she  should  be  secured  by  the  first  mortgage  on  the  premises, 
and  that  D«  Groot  would  take  a  mortgage  subsequent  to  hers 
for  the  remaining  $5000  of  the  purchase  money.  That, 
on  these  conditions,  she  agreed  to  loan  Demarest  the  $2000, 
to  be  secured  by  the  first  mortgage  on  the  premises.  That 
De  Groot  agreed  with  her  agent,  appointed  by  her  to  conclude 
the  loan  and  take  the  security,  that,  if  she  would  loan  the 
$2000,  he  would,  on  receiving  $4000  of  the  purchase  money, 
accept  for  the  residue  of  the  purchase  money  a  mortgage 
subsequent  to  the  mortgage  to  be  given  to  her  at  the  same 
time,  stating  that,  unless  he  could  get  $4000  of  the  pur- 
chase money  in  cash,  he  could  not  procure  a  release  of  the 
claim  of  the  receivers  of  the  Washington  Bank  on  the  premises. 
That,  thereupon,  it  was  agreed  by  De  Groot,  Demarest,  and 
her,  that  she  should  loan  the  $2000  to  Demarest;  that  this  sum, 


SEPTEMBER  TERM,  1845.  115 


Lovelt  v.  Demarest  et  al. 


with  2000  dollars  more  to  be  paid  by  Demarest,  should  be  paid 
to  said  receivers  to  procure  a  release  from  them  to  De  Groot, 
and  that  on  the  delivery  of  the  release,  De  Groot  was  to  convey 
the  premises  to  Demarest;  and  that  thereupon  Demarest  and 
his  wife  should  secure  this  defendant  by  the  first  mortgage  on 
the  premises,  and  after  that  should  give  De  Groot  a  mortgage 
on  the  premises  for  5000  dollars,  the  residue  of  the  purchase 
money.  That  in  pursuance  of  said  agreement,  she,  on  or 
about  the  24th  of  May,  1836,  lent  and  advanced  to  Demarest 
the  2000  dollars,  which,  with  2000  dollars  more  advanced  by 
Demarest,  was  paid  to  the  said  receivers,  whereupon  they  de- 
livered their  said  release  to  De  Groot,  who  thereupon  executed 
and  delivered  to  Demarest  a  deed  for  the  premises;  and  there- 
upon Demarest  gave  his  bond  to  this  defendant,  dated  the  said 
24th  of  May,  1836,  conditioned  for  the  payment  of  2000  dol- 
lars, with  interest,  on  or  before  the  1st  of  May  then  next,  and 
a  mortgage  of  the  premises  of  the  same  date,  executed  by  him 
and  his  wife,  to  secure  the  same.  That  said  bond  and  mort- 
gage were  delivered  to  her,  in  the  presence  of  De  Groot,  before 
the  bond  and  mortgage  set  forth  in  the  complainant's  bill  were 
executed  or  delivered  to  De  Groot;  and  that  De  Groot,  after 
the  mortgage  to  him  was  executed  and  delivered,  signed  a  writ- 
ing endorsed  on  this  defendant's  mortgage,  by  which  he  ac- 
knowledged that  the  mortgage  of  this  defendant  was  prior  in 
point  of  date  and  lien  to  jhe  mortgage  to  him,  and  was  to  be 
tirst  paid ;  and  that  for  greater  certainty,  and  that  the  priority 
of  this  defendant's  mortgage  might  be  manifest  to  all,  the  said 
De  Groot  agreed  not  to  deposit  his  mortgage  in  the  clerk's  office 
for  registry  until  some  day  after  this  defendant's  mortgage 
should  be  so  deposited.  That  the  execution  of  her  mortgage 
was  duly  acknowledged  on  the  day  of  the  date  thereof,  and  was 
received  in  live  clerk's  office  on  the  25ih  of  that  month,  and  was 
duly  registered  by  the  clerk.  That  she  has  no  knowledge  of 
the  assignment  to  the  complainant,  of  the  said  mortgage  to  De 
Groot,  nor  of  the  representation  made  at  the  time  thereof,  by 
De  Groot  to  complainant,  except  by  the  complainant's  bill. 

The  defendant  Demarest,  in  his  answer,  states  that  the 
mortgage  to  Elizabeth  Boyd  was  given  to  secure  2000  dollars 
loaned  by  her  to  him,  to  pay  De  Groot  on  the  purchase  of  said 


116  CASES  IN  CHANCERY. 

Lovett  v.  Demarest  et  al. 

premises ;  and  that  he  and  his  wife,  by  an  arrangement  and 
the  express  consent  of  De  Groot,  and  in  his  presence,  executed 
and  delivered  to  Elizabeth  Boyd  the  said  mortgage  to  her,  be- 
fore the  execution  and  delivery  of  the  mortgage  to  De  Groot; 
and  that  this  $2000  was  paid  by  him  to  De  Groot,  as  part  of  the 
purchase  money  for  the  premises. 

And  this  defendant,  by  way  of  defence  against  the  mortgage 
to  De  Groot,  in  the  hands  of  the  complainant,  denies  that  the 
assignment  thereof  to  the  complainant  was  in  consideration  of 
5000  dollars  paid  by  complainant  to  De  Groot;  but  says  the 
said  assignment  was  made  in  pursuance  of  a  usurious  contract 
between  De  Groot  and  the  complainant,  by  virtue  of  which  the 
complainant  loaned  and  advanced  to  De  Groot,  partly  in  money 
and  partly  in  securities  for  money,  a  large  part  of  which  proved 
worthless,  4500  dollars,  for  which  De  Groot  assigned  to  the 
complainant  the  said  bond  and  mortgage,  and  also  guaranteed 
and  became  personally  responsible,  by  writing  under  his  hand, 
to  the  complainant,  that  the  complainant  should  recover  and 
receive  from  said  bond  and  mortgage,  the  principal  sum  of  5000 
dollars,  with  interest  at  six  per  cent. ;  and  that  said  4500  dollars 
was  advanced  to  De  Groot  by  the  complainant,  in  money  and 
securities  as  aforesaid,  upon  the  said  contract  and  agreement 
that  De  Groot  should  assign  the  said  bond  and  mortgage  and 
guarantee  the  same  as  aforesaid  ;  and  claims  that  thereby  the 
said  contract  and  assignment  were  rendered  usurious  and  void  ; 
and  says  that  De  Groot  has  notified  him  of  the  circumstances 
under  which  said  assignment  was  made,  insists  that  said  assign- 
ment is  usurious  and  void,  and  claims  said  bond  and  mortgage  as 
his  own  property,  as  if  no  assignment  thereof  had  ever  been  made. 

Both  mortgages  were  acknowledged  on  the  day  of  their  date, 
before  A.  O.  Zabriskie,  master  in  chancery. 

Evidence  was  taken,  and  a  writing  endorsed  on  the  mort- 
gage to  Elizabeth  Boyd,  and  signed  by  De  Groot,  dated  May 
24th,  1836,  acknowledging  that  her  mortgage  was  the  first  lien 
on  the  premises,  and  was  to  be  paid  before  the  mortgage  given 
to  him  on  the  same  premises  was  exhibited. 

J.  D.  Miller,  for  the- complainant,  cited  2  Johns.  Ch.  R.  603; 
15  Ib.  458. 


SEPTEMBER  TERM,  1845.  117 

Lovett  v.  Demarest  et  al. 

A.  0.  Zabriskie,  for  the  defendants,  cited  1  Green's  Chan.  R. 
42,  161,  335;  2  Harrison  191. 

THE  CHANCELLOR.  Tlie  facts  set  forth  in  the  answer  of 
Elizabeth  Boyd,  on  which  the  priority  of  her  mortgage  is 
claimed,  are  fully  proved  by  the  testimony  of  A.  O.  Zabriskie, 
esquire,  who  drew  and  witnessed  the  execution  of  both  bonds 
and  mortgages,  and  before  whom  both  mortgages  were  acknowl- 
edged, and  who  was  also  one  of  the  receivers  of  the  Washington 
Bank  ;  and  by  the  writing  signed  by  De  Groot  and  endorsed  on 
the  mortgage  of  Elizabeth  Boyd.  There  can  be  no  doubt  that 
under  these  circumstances  the  mortgage  of  Elizabeth  Boyd  is 
the  prior  lien.  Though  the  mortgage  to  De  Groot  was  for  a 
part  of  the  consideration  money  for  which  he  sold  the  premises 
to  Demarest,  yet  he  might  agree  that  Demarest  should  first  exe- 
cute and  deliver  to  another  a  mortgage  on  the  same  premises, 
and  that  such  prior  mortgage  should  be  first  recorded.  •  If  by 
collusion  between  Demarest  and  Elizabeth  Boyd,  a  mortgage 
had  been  made  by  Demarest  to  her  without  De  Groot's  knowl- 
edge, and  for  the  fraudulent  purpose  of  interposing  a  prior  lien, 
a  court  of  equity  would  relieve;  but  here,  the  arrangement  was 
made  by  De  Groot's  express  consent,  and  was,  to  the  knowledge 
of  De  Groot,  the  inducing  cause  or  reason  of  the  loan  by  Eliza- 
beth Boyd  to  Demarest.  It  would  be  a  fraud  on  her  to  permit 
De  Groot  to  postpone  her  claim ;  nor  can  her  claim  be  post- 
poned in  favor  of  De  Groot's  assignee.  Her  mortgage  was  first 
recorded,  and  it  was  so  recorded  by  the  consent  and  agreement 
of  De  Groot. 

The  evidence  of  Lewis  B.  Cobb,  that  when  the  assignment 
by  De  Groot  to  complainant  was  made,  De  Groot  produced  a 
paper  purporting  to  be  a  certificate  of  the  clerk  of  Bergen,  set- 
ting forth  that  the  mortgage  assigned  was  the  first  and  only 
mortgage,  if  at  all  competent,  could  not  avail  the  complainant. 
That  paper  was  taken  away  by  De  Groot,  and  is  not  produced 
in  evidence.  But  if  the  clerk  gave  any  such  certificate,  it  could 
not  affect  the  mortgage  of  Elizabeth  Boyd,  if  it  was  contrary 
to  the  fact. 

Demarest,  the  mortgagor,  sets  up  in  his  answer  that  the  as- 
signment to  the  complainant  of  the  De  Groot  mortgage  was 


118  CASES    IN  CHANCERY. 

Lovett  v.  Demarest  et  al. 

usurious.  That  De  Groot,  when  he  made  the  assignment,  gave 
his  personal  guaranty,  by  writing  under  his  hand,  to  the  com- 
plainant, that  the  complainant  should  receive  from  the  said  bond 
and  mortgage  the  whole  sum  mentioned  therein,  and  interest; 
that  this  guaranty  made  the  assignment  usurious,  and  that  no 
decree  should  be  made  in  favor  of  the  complainant.  No  such 
guaranty  appears  in  the  written  assignment,  and  no  proof  of 
any  guaranty  is  made  in  the  cause.  The  counsel  for  Demarest 
contends  that  the  allegation  to  that  effect  in  Demarest's  answer 
is  sufficient  proof  of  the  fact,  unless  disproved  by  testimony  on 
the  part  of  the  complainant.  This  position  cannot  be  main- 
tained. A  replication  was  filed.  The  complainant  proves  and 
produces  the  mortgage  and  an  assignment  thereof  to  him,  in 
which  no  guaranty  appears  ;  and  the  defendant  gives  no  evi- 
dence whatever  of  the  allegation  in  his  answer.  The  cases 
cited  by  the  defendant's  counsel  from  1  Green,  cannot  be  sup- 
posed to  sanction  the  idea  that,  under  such  circumstances,  the 
allegation  of  the  answer  is  sufficient  to  establish  the  fact  of 
usury.  If  a  complainant  sets  down  his  cause  for  hearing  on 
bill  and  answer,  the  answer  is  evidence  of  the  facts  set  up  in 
defence;  but  matters  respecting  which  no  inquiry  is  made  by 
the  bill,  and  which  are  set  up  in  the  answer  in  avoidance  or  in 
bar,  are  denied  by  the  replication,  and  must  be  proved  aliunde. 

There  is  no  proof,  therefore,  before  the  court,  of  the  guaranty, 
on  the  allegation  of  which  the  defence  of  usury  is  set  up. 

This  makes  it  unnecessary  to  consider  whether  the  principle 
adopted  by  our  Supreme  Court  in  the  case  of  Freeman  v.  Brit- 
tan,  in  reference  to  usurious  endorsements  of  commercial  paper, 
would  be  applicable  to  this  case  if  the  guaranty  was  proved. 

A  decree  will  be  made  for  the  sale  of  the  premises,  to  pay, 
first,  the  mortgage  to  the  defendant  Elizabeth  Boyd,  and,  next, 
the  mortgage  held  by  the  complainant. 


SEPTEMBER  TERM,  1845.  119 


Williams  v.  Adm'r  of  Stevens. 


JONATHAN   H.   WILLIAMS   v.   PHILIP    KINGSLEY,    ADMINIS- 
TRATOR, &c.,  OF  NATHANIEL  STEVENS,  DECEASED. 

1.  One  of  two  partners,  being  about  to  leave  the  state  for  his  health,  assigned 
to  the  other  partner  a  bond  and  mortgage  he  held  against  a  third  person.   He 
died  while  absent.     The  administrator  of  his  personal  estate  sued  the  surviv- 
ing partner  for  the  amount  of  the' bond  and  mortgage.     On  a  sworn  bill,  filed 
Sy  the  surviving  partner,  stating  that  the  deceased  partner,  when  he  left,  was 

debted  to  the  partnership  in  more  than  the  amount  of  the  bond  and  mort- 
gage, and  that  it  was  agreed  between  them  that  they  should  be  applied  to  the 
purposes  of  the  partnership  (stating  how),  and  that  he  had  so  applied  them, 
the  administrator  was  enjoined  from  proceeding  in  the  suit. 

2.  The  facts  on  which  the  equity  of  the  bill  rested,  were  not  charged  to  be 
within  the  knowledge  of  the  administrator.     A  motion  to  dissolve,  on  his 
answer,  was  denied. 

3.  Insufficiency  of  answer  in  other  respects. 

Jonathan  H.  Williams,  the  complainant,  and  Nathaniel  Ste- 
vens, since  deceased,  in  May,  1835,  entered  into  partnership  in 
the  hatting  business,  the  business  to  be  carried  on  in  the  name 
of  the  complainant.  On  the  1st  of  January,  1839,  the  com- 
plainant and  Stevens  came  to  a  settlement  of  the  partnership 
business  up  to  that  time,  on  which  settlement  Stevens  was  found 
to  be  indebted  to  the  partnership  in  $1541,  and  the  complainant 
to  be  indebted  in  $213.  The  partnership  business  continued 
till  the  death  of  Stevens,  at  St.  Augustine,  in  November,  1839. 
On  the  8th  of  October,  1839,  Stevens,  being  about  to  leave 
this  state  for  St.  Augustine,  for  his  health,  assigned  and  deliv- 
ered to  the  complainant  a  bond  and  mortgage,  given  by  one 
William  Bod  well  to  him,  Stevens,  on  which  there  was  due  of 
principal  and  interest,  $640.  Stevens  died  while  absent.  In 
January,  1841,  administration  of  his  goods,  chattels,  &c.,  was 
granted  by  the  surrogate  of  Essex  county,  in  this  state,  to 
Philip  Kingsley,  the  defendant.  The  defendant,  as  such  ad- 
ministrator, brought  an  action  of  assumpsit  against  the  com- 
plainant, to  recover  the  sum  due  on  the  bond  and  mortgage 
when  the  same  was  assigned  to  the  complainant.  The  com- 
plainant, in  February,  1843,  filed  his  bill,  stating,  in  addition 
to  the  foregoing  facts,  that  the  settlement  in  January,  1830, 


120  CASES  IN  CHANCERY. 

Williams  v.  Adm'r  of  Stevens. 

was  made  at  Stevens'  house,  and  that  a  particular  statement 
thereof  was  then  made,  and  left  with  Stevens;  that  a  note  of 
the  settlement  was  made  in  the  books  of  account  of  the  part- 
nership, and  signed  by  the  complainant  and  Stevens  at  the 
time,  but  that  said  books  are  in  the  possession  of  the  widow  of 
Stevens ;  that  when  the  bond  and  mortgage  were  assigned,  Ste- 
vens owed  the  partnership  more  than  the  sum  due  thereon  ;  and 
that  it  was  then  understood  and  agreed  that  the  bond  and 
mortgage  should  be  collected  or  disposed  of  by  the  complainant, 
to  pay  the  debts  and  carry  on  the  business  of  the  partnership, 
and,  particularly,  that  a  debt  of  $500,  then  due  from  the 
partnership  to  said  Bod  well,  should  be  discharged  from  the 
amount  due  on  said  bond.  That  the  complainant,  in  January, 
1840,  settled  with  Bodwell,  and  allowed  him  his  demand  against 
the  partnership,  towards  payment  of  his  said  bond  and  mort- 
gage, and  received  from  him  the  balance  due  thereon.  That 
after  the  death  of  Stevens,  the  complainant,  as  surviving  part- 
ner, paid  all  the  debts  of  the  partnership,  and  collected,  debts 
and  disposed  of  the  stock  in  trade,  which  was  of  small  value. 
That  the  defendant,  as  such  administrator,  compromised  and 
settled  a  debt  due  the  partnership  from  Ransom  &  Company,  of 
New  York,  of  $386,  besides  interest,  and  received  fifty 
cents  on  the  dollar  therefor,  and  that  he  may  have  received 
other  debts,  and  prays  a  discovery.  That  the  complainant  and 
defendant  are  unable  to  agree  on  a  settlement,  the  defendant 
insisting  that  the  complainant  is  bound  to  pay  to  him  the  prin- 
cipal and  interest  of  the  said  bond  and  mortgage.  That  Ste- 
vens, at  the  time  of  his  death,  was  indebted  to  the  complain- 
ant on  a  note  given  by  him  to  the  complainant,  dated  May 
14th,  1835,  payable  at  ten  months,  for  $500,  and  that  the 
same,  with  the  interest  thereon,  is  still  due.  That  on  a  just 
settlement  of  the  accounts  of  the  partnership,  crediting  the 
estate  with  the  said  bond  and  mortgage,  there  would  be  due 
the  estate  of  Stevens,  about  $21,  without  allowing  the 
complainant  anything  for  his  expenses  and  pains  in  settling 
the  partnership  estate;  and  that  if  the  said  note  of  $500, 
with  the  interest  thereon,  be  taken  into  the  account,  there 
would  be  due  the  complainant  upwards  of  $700.  The 
bill  claims  that  the  amount  due  on  the  said  bond  and  mort- 


SEPTEMBER  TERM,  1845.  121 

Williams  v.  Adm'r  of  Stevens. 

gage  when  the  same  were  so  assigned,  should  be  settled  with 
and  as  part  of  the  partnership  accounts,  and  not  bt  considered 
an  individual  debt  due  from  the  complainant  to  the  estate  of 
Stevens  ;  and  prays  an  account  of  the  partnership  transactions, 
and  of  all  moneys  received  by  the  defendant  from  the  partner- 
ship effects;  and  that,  in. the  meantime,  the  said  suit  at  law 
may  be  enjoined. 

The  injunction  prayed  was  granted. 

The  defendant  put  in  an  answer  to  the  bill.  The  only  parts 
of  the  answer»which  need  now  be  stated  are  as  follows  :  It  ad- 
mits that  in  January,  1839,  Stevens  and  the  complainant 
made  some  settlement  or  adjustment  of  their  business  up  to  that 
time;  and  that  from  entries  in  one  of  the  books  of  account, 
signed  by  the  complainant  and  Stevens,  on  settlement  then 
made  between  them,  respectively,  and  the  shop,  there  was  due 
from  Stevens  $1541.60,  and  from  complainant  $213.32.  That 
the  business  was  carried  on,  after  that  settlement,  till  the  death 
of  Stevens ;  that  the  books  of  account  relating  to  the  business 
are  in  his,  the  defendant's,  possession  ;  and  states  that  from  the 
entries  in  said  books,  up  to  the  time  of  the  death  of  Stevens,  on 
a  fair  settlement  of  the  accounts,  there  is  nothing  due  from 
Stevens  on  account  thereof.  The  answer  further  states  that 
Stevens,  previous  to  leaving  the  state,  placed  if*  the  hands  of 
the  complainant  the  Bodwell  bond  and  mortgage,  to  be  collected 
by  the  complainant  for  his  use,  and  took  the  complainant's  re- 
ceipt for  the  same,  which  is  now  in  his,  the  defendant's,  posses- 
sion, ready  to  be  produced,  &c. ;  and  denies  that  said  bond  and 
mortgage  were  assigned  and  delivered  to  the  complainant,  to  be 
collected  and  disposed  of  by  him  for  the  purpose  of  paying  the 
debts  of  the  partnership,  or  carrying  on  said  business ;  and  de- 
nying any  agreement  or  understanding  between  Stevens  and  the 
complainant,  that  $500  and  upwards  should  be  paid  or  allowed 
to  Bodwell  from  the  amount  due  on  said  bond  an'l  mortgage,  or 
any  agreement  to  that  or  the  like  effect. 

The  answer  denies  that  the  defendant  and  complainant  were 
unable  to  agree  on  a  settlement,  and  says  that,  on  the  contrary, 
they  did  agree  upon  a  settlement,  and  that  on  or  about  the  time 
of  the  settlement  made  by  him,  the  defendant,  with  Ransom  & 

VOL.  i.  H 


122  CASES  IN  CHANCERY. 

Williams  v.  Adm'r  of  Stevens. 

Company,  the  complainant  and  the  defendant  settled  all  the  ac- 
counts and  transactions  in  relation  to  said  business  carried  on 
between  the  complainant  and  Stevens;  and  that  since  the  said 
settlement,  the  complainant  has  admitted  that  there  was  no  dis- 
pute about  the  said  Bodwell  bond  and  mortgage,  and  that  he 
was  to  pay  the  amount  received  on  the  same  to  the  defendant, 
as  administrator,  &c.,  of  Stevens. 

The  answer  says  it  may  be  true  that  the  complainant  has  in 
his  possession  the  promissory  note  made  by  Stevens,  mentioned 
in  the  bill,  but  denies  that  it  is  justly  owing  to  the  complainant; 
that  the  complainant,  in  all  his  transactions  with  the  defendant 
in  relation  to  the  settlement  of  the  business  between  the  com- 
plainant and  Stevens,  never  informed  the  defendant  of  the  ex- 
istence of  said  note,  or  made  any  claim  for  the  same  ;  and, the 
defendant  insists  that,  if  any  such  note  exists,  it  is  fraudulent 
and  void,  and  has  long  since  been  paid  off  and  satisfied,  and  is 
kept  on  foot  by  fraud. 

The  defendant  says  that  after  the  death  of  Stevens,  the  com- 
plainant caused  entries  to  be  made  in  the  books,  giving  himself 
large  credits  on  account  of  said  business,  to  which  he  is  not 
fairly  entitled  ;  and  that  on  examining  said  books  he,  the  de- 
fendant, has  been  unable  to  find  therein  any  credits  given  to 
Stevens  for  the  said  bond  and  mortgage. 

On  this  answer,  a  motion  was  made  to  dissolve  the  injunction. 

S.  R.  Grover,  for  the  motion. 

A  Whitehead,  contra,  cited  1  Paige  100,  426 ;  3  Ibid.  42, 
436 ;  2  Johns.  Ch.  Rep.  204 ;  Hopk.  148  ;  1  Green's  Ch.  Rep. 
193,4%;  Dev.  Eq.  429. 

THE  CHANCELLOR.  The  leading  facts  on  which  the  equity 
of  the  bill  rests,  are,  that  on  the  1st  of  January,  1839,  a  set- 
tlement of  the  .'.usiness  up  to  that  time  was  made  between  the 
complainant  and  otevens,  by  which  Stevens  was  found  to  be 
indebted  to  the  partijTship  in  1541  dollars,  and  the  complain- 
ant to  be  indebted  to  *he  partnership  in  213  dollars  and  28 
cents,  a  particular  state  .  »nt  of  which  settlement  was  left  with 


SEPTEMBER  TERM,  1845.  123 

Williams  v.  Adm'r  of  Stevens. 

Stevens,  and  a  note  of  which  was  made  in  the  books  of  the 
partnership,  and  signed  by  the  complainant  and  Stevens;  that 
the  said  books  are  in  the  possession  of  the  defendant;  that  the 
business  was  continued  after  that  settlement,  till  the  death  of 
Stevens,  which  occurred  at  St.  Augustine,  Florida,  whither  he 
jiad  gone  for  his  health,  in  November,  1839.  That  on  the  8L 
of  October,  1839,  shortly  before  he  left  this  state  for  St.  Augus- 
tine, Stevens  assigned  and  delivered  to  the  complainant  a  bond 
and  mortgage  given  by  one  Bodwell  to  him,  on  which  640  dol 
lars  was  due,  which  it  was  then  understood  and  agreed  shouk. 
be  collected  or  disposed  of  by  the  complainant,  to  pay  the  debth 
and  carry  on  the  business  of  the  partnership ;  and  particularly 
that  a  debt  of  500  dollars,  due  from  the  partnership  to  Bodwell 
should  be  settled;  that  the  complainant  settled  with  Bodwell  the 
said  debt,  with  the  bond  and  mortgage,  and  received  from  him 
the  balance.  That  after  the  death  of  Stevens,  the  complainan 
paid  all  the  debts  of  the  partnership ;  and  that  on  a  settlemei% 
of  the  partnership  accounts,  after  crediting  Stevens  with  the 
amount  of  the  bond  and  mortgage,  there  would  be  due  Stevens 
about  21  dollars,  without  allowing  the  complainant  anything 
tor  his  expenses  and  pains  in  settling  the  partnership  business 
That  Stevens,  at  the  time  of  his  death,  was  indebted  to  tin 
complainant,  on  a  promissory  note  given  by  him  to  the  com- 
piainaut,  dated  May  14th,  1835,  payable  in  ten  mouths,  for 
500  dollars,  which,  with  the  interest  thereon,  is  still  due  and 
unpaid. 

The  bill  prays  an  account  of  the  partnership  affairs,  and  an 
injunction  against  further  proceedings  in  a  suit  brought  by  the 
defendant,  as  administrator,  &c.,  of  Stevens,  against  the  com- 
plainant, to  recover  the  amount  which  was  due  on  the  said 
bond  and  mortgage  when  the  same  was  so  assigned  to  the  com- 
plainant. 

The  indebtedness  of  Stevens  to  the  partnership  in  January, 
1839,  is  admitted.  How,  and  for  what  purpose,  was  the  Bod- 
well bond  and  mortgage  assigned  to  the  complainant?  Was 
the  assignment  general  and  absolute,  or  was  it  special?  From 
the  language  of  the  bill,  I  should  understand  that  the  assign- 
ment was  in  the  usual  form,  absolute,  and  that  there  was  an 
undtTsianding  or  agreement,  not  appearing  in  the  written  assign- 


124  CASES  IN  CHANCERY. 

Williams  v.  Adm'r  of  Stevens. 

ment,  that  the  bond  and  mortgage  should  be  collected  or  dis- 
posed of  for  the  purpose  of  the  partnership,  as  stated  in  the 
bill.  The  defendant,  having  no  personal  knowledge  of  the 
transaction,  denies  that  they  were  to  be  so  applied,  and  insists 
that  they  were  to  be  applied  to  Stevens'  individual  use  and 
benefit,  and  says  that  he  has  in  his  possession  the  complainant's 
receipt  for  the  same,  but  he  does  not  set  out  the  terms  or  the 
contents  of  the  receipt. 

The  terms  of  this  receipt  might  have  aided  much  in  the  de- 
cision of  the  question  now  before  the  court.  If  it  would  show 
that  the  complainant  agreed  to  account  with  Stevens,  individu- 
ally, for  the  proceeds  of  the  bond  and  mortgage,  more  should 
have  been  said  in  the  answer  about  it,  than  simply  that  Stev- 
ens took  the  complainant's  receipt  for  the  bond  and  mortgage. 
If  the  assignment  of  the  bond  and  mortgage  was  general  and 
absolute,  the  receipt  must  have  been  taken  for  some  purpose, 
and  that  purpose,  it  is  presumed,  would  be  stated  in  it;  and  if 
the  administrator  founds  his  denial  of  the  charge,  that  the  bond 
and  mortgage  were  to  be  applied  as  stated  in  the  bill,  on  infor- 
mation acquired  from  the  receipt,  he  should  have  apprised  the 
court  of  the  terms  of  the  receipt.  The  mere  denial  of  an  ad- 
ministrator having  no  personal  knowledge  of  a  transaction  be- 
tween his  intestate  and  a  complainant,  is  not  sufficient  to  dis- 
solve an  injunction. 

The  bill  states  that  at  the  time  of  the  assignment  of  the 
bond  and  mortgage,  Stevens  was  indebted  to  the  partnership  in 
a  considerable  sum,  and  more  than  the  amount  due  on  the  bond 
and  mortgage.  The  answer  to  this  is  a  denial  by  the  adminis- 
trator that  Stevens,  when  he  left  the  state,  was  indebted  to  the 
partnership  in  a  considerable  sum ;  and  a  statement  that  he, 
the  defendant,  has  heard  and  believes,  that  the  complainant, 
since  the  granting  of  letters  of  administration  to  the  defendant, 
and  since  the  settlement  stated  in  his  answer  to  have  been  made 
between  the  complainant  and  defendant,  admitted  that  there 
was  no  dispute  about  the  bond  and  mortgage,  and  that  he  was 
to  pay  the  amount  he  received  on  the  same  to  the  defendant,  as 
administrator  of  Stevens.  This  denial  is  insufficient,  and  is  not 
aided  by  the  hearsay  set  up  in  the  answer. 

To  the  charge  in  the  bill,  of  the  indebtedness  of  Stevens,  and 


SEPTEMBER  TERM,  1845.  125 

"Williams  v.  Adm'r  of  Stevens. 

the  amount  thereof,  to  the  partnership,  at  the  time  of  the  as- 
signment of  the  bond  and  mortgage,  the  defendant  admits  that 
the  books  of  account  are  in  his  possession,  and  says  that,  from 
the  entries  in  the  said  books  up  to  the  time  of  the  death  of 
Stevens,  on  a  fair  settlement  of  the  accounts  respecting  said  busi- 
ness, there  is  nothing  due  from  Stevens  on  account  thereof. 
What  are  we  to  understand  by  the  fair  settlement  the  defendant 
here  speaks  of?  The  bill  states  that  the  complainant  and 
defendant  are  unable  to  agree  on  a  settlement,  the  defendant 
insisting  that  the  complainant  is  bound  to  pay  him  the  principal 
and  interest  of  the  bond  and  mortgage.  The  answer  says  that 
the  complainant  and  defendant  did  agree  on  a  settlement. 
What  was  settled  ?  It  appears  to  me  that  the  answer,  exam- 
ined in  reference  to  the  charges  of  the  bill,  is  not  sufficient  to 
show  that  this  matter  of  the  bond  and  mortgage  was  ever  set- 
tled between  them.  W'hen  the  defendant,  in  his  answer,  says 
that  he  aud  the  complainant  agreed  to  settle  all  the  accounts 
and  transactions  in  relation  to  said  business,  he  may  mean  all 
the  accounts  and  transactions  that  he  supposed  belonged  to  said 
business.  Did  they  settle  all  matters  which  the  complainant 
claimed  to  belong  to  the  partnership  accounts?  Did  the  com- 
plainant tlien  admit  that  the  bond  and  mortgage  did  not  belong 
to  the  partnership  business  ?  If  he  did,  it  would  not  have  been 
necessary  for  the  defendant,  in  his  answer,  to  resort  to  the  state- 
ment that,  since  the  settlement,  the  complainant  had  admitted 
that  he  was  to  pay  to  the  defendant  the  amount  of  the  bond  and 
mortgage. 

It  is  manifest  that  whatever  may  have  been  said  or  done  at 
any  settlement,  or  attempted  settlement,  the  parties  are  still  at 
variance  as  to  how  the  bond  and  mortgage  are  to  be  accounted 
for;  aud  we  are  brought  back  to  the  inquiry  for  the  terms  of 
the  receipt,  which  the  defendant  says  he  has  in  his  possession. 
Again,  if  there  was  a  full  settlement  between  these  parties,  the 
posture  of  their  affairs,  and  particularly  the  character  in  which 
the  defendant  was  acting,  would  lead  us  to  expect  'some  written 
evidence  of  it. 

'  In  view  of  the  whole  case,  I  think  it   would   not  be  a  safe 
exercise  of  discretion  to  dissolve  the  injunction. 

Motion  denied. 
CITED  in  HoMredge  v.  Gwynne,  3  C.  E.  Or.  32. 


126  CASES  IN  CHANCERY. 


Society  for  Establishing  Manufactures  v.  Holsman. 


THE  SOCIETY  FOE  ESTABLISHING  USEFUL  MANUFACTURES 
v.  CATHARINE  HOLSMAN  ET  AL. 

In  1813,  the  Society  for  Establishing  Useful  Manufactures  sold  a  lot  in 
Paterson,  "  together  with  the  right  of  taking  from  their  canal  twelve  inches 
Rquare  of  water."  A  mill  was  shortly  after  erected  on  the  lot,  and  water  was 
drawn  from  the  canal  for  supplying  it,  wilhout  the  use  of  any  means  for 
accurately  measuring  the  quantity  drawn.  In  1827,  the  society  gave  a  notice 
to  the  owner  of  the  mill,  that  he  had  reason  to  believe  he  was  taking  more 
than  the  said  quantity  of  water,  and  requesting  him  to  confine  his  future  use 
of  water  to  that  quantity.  The  owner  of  the  mill,  in  answer  to  the  notice, 
said  he  was  not  using  more  than  the  one  foot  of  water.  In  December,  1843, 
a  like  notice  was  given  and  request  made.  The  owner  did  nothing  to  limit 
the  flow.  In  April,  1844,  the  society  built  a  stone  wall  in  their  canal,  oppo- 
site the  head-race  leading  the  water  on  the  lot,  and  placed  in  the  side  of  the 
wall  a  piece  of  cast  iron,  with  an  aperture  in  it  of  twelve  inches  square,  for 
the  flow  of  water  into  the  head-race,  and,  thereupon,  the  owner  of  the  mill 
prostrated  the  said  wall.  A  motion  for  a  preliminary  injunction,  restraining 
the  owner  from  taking  more  water  than  will  run  through  an  aperture  of 
twelve  inches  square,  and  from  pulling  down  or  taking  out  any  gauge  which 
the  society  might  insert  for  the  purpose  of  measuring  twelve  inches  square 
of  water,  was  denied. 

The  bill  states  that  the  Society  for  Establishing  Usefel  Manu- 
factures, the  complainants,  on  the  20th  of  January,  1813,  sold 
and  conveyed,  by  deed,  to  Roswell  L.  Colt,  a  mill  lot  on  Boudi- 
not  street,  Paterson  (describing  it),  "  together  with  the  right  of 
taking  from  their  canal  in  Boudinot  street  aforesaid,  twelve  inches 
square  of  water,  say  one  hundred  and  forty-four  square  inches," 
for  the  consideration  of  $2500.  That  on  the  3d  of  February, 
1813,  Colt,  with  his  wife,  conveyed  the  said  lot  and  water-power 
to  one  David  Parish.  That  Parish,  by  deed  of  November  12th, 
1813,  conveyed  said  lot  and  water:power  to  Daniel  Holsraan, 
with  the  buildings  and  improvements  ejected  on  said  lot.  That 
Parish  or  Holsman  erected  on  said  lot  a  mill,  which  has  ever 
bince  been  used  for  the  manufacture  of  cotton.  That  Holsman 
owned  said  premises,  and  occupied  them  by  himself  or  his  les- 
sees, till  his  death,  in  October,  1840,  intestate,  leaving  Catha- 
rine Holsman,  his  widow,  and  six  children,  his  heirs-at-lavv,  and 
minors,  and  that  said  Catharine  Holsmau  has  taken  letters  of 


SEPTEMBER  TERM,  1845.  127 

Society  for  Establishing  Manufactures  v.  Holsman. 

administration.  That  neither  Colt,  nor  Parish,  nor  Holsman, 
ever  had  or  claimed  any  legal  right  to  a  greater  quantity  of  wa- 
ter to  be  used  on  said  lot,  than  was  granted  by  the  said  deed 
from  the  society.  That  on  or  about  December  7th,  1827,  the 
complainants  gave  a  notice  in  writing  to  said  Daniel  Holsman, 
that  by  virtue  of  the  deed  under  which  he  occupied  the  said  lot 
and  water  privileges,  he  was  entitled  to  take  from  the  canal  on 
Boudinot  street  twelve  inches  square  of  water,  say  144  square 
inches ;  that  the  society  considered  that  the  said  quantity  of 
water  was  to  be  ascertained  at  the  canal  from  which  it  was 
taken,  in  Boudinot  street;  and  that,  as  they  had  reason  to  be- 
lieve that  the  quantity  of  water  then  taken  by  him  exceeded 
the  said  quantity,  they  felt  it  to  be  their  duty  to  give  him  that 
notice,  and  to  request  him  to  confine  his  future  use  of  the  water 
withiu  the  terms  of  the  said  deed.  That  Holsman,  on  receiving 
said  notice,  did  not  pretend  that  he  had  any  right  to  more  than 
one  foot  of  water  ;  but  that  he  then  declared  that  he  did  not  use 
more  than  one  foot  of  water  on  the  said  lot.  That  after  Hols- 
man's  death,  his  widow  leased  the  lot  and  water  power  to  Jo- 
seph Stark  and  William  Parsons,  and  while  they  occupied  the 
premises,  the  complainants  gave  another  notice  directed  to  Cath- 
arine Holsman,  administratrix  of  Daniel  Holsman,  deceased; 
this  notice  was  the  same  as  the  other,  with  the  addition  of  these 
words  :  "  by  placing  a  cast  iron  aperture  of  twelve  inches  square, 
or  in  such  other  way  as  shall  limit  the  quantity  of  water  taken 
to  the  amount  granted,  strict  measure  ;"  and  requiring  it  to  be 
done  by  the  first  day  of  April,  then  next,  or  that  the  society 
would  feel  itself  compelled  to  apply  to  the  proper  tribunal  for 
redress.  This  notice  was  dated  December  26th,  1843,  and  a 
copy  of  it  was  left  with  Stark  and  Parsons,  on  the  premises,  on 
the  28th  of  that  month.  That  thereupon,  the  said  Stark  ap- 
plied to  the  complainants,  and  verbally  agreed  to  hire  of  them 
an  additional  square  foot  of  water,  to  be  used  on  said  lot,  for 
about  ten  months,  the  time  during  which  his  lease  was  to  run, 
for  $400,  and  agreed  that  a  cast  iron  gauge  should  be 
inserted,  so  as  to  draw  but  two  square  feet  of  water.  That 
thereupon  the  said  Catharine  Holsman  interfered,  and  forbid 
Stark  from  hiring  said  foot  of  water.  That  Stark  and  Parsons, 
during  their  lease,  which  expired  in  February,  1845,  continued 


128  CASES  IN  CHANCERY. 

Society  for  Establishing  Manufactures  v.  Holsman. 

to  draw  from  the  race  on  Boudiuot  street  about  three  feet  of  wa- 
ter, and  that  Parsons,  who  then  hired  and  still  occupies  the 
premises,  has  continued  to  do  so. 

That  after  the  said  last-mentioned  notice  was  so  given,  the 
complainants  received  a  notice,  dated  March  26th,  1844,  sign- 
ed C.  Holsman,  administratrix  of  Daniel  Holsman,  deceased, 
and  guardian  of  his  minor  children,  by  which  the  society,  and 
all  persons  acting  for  or  under  them,  are  notified  to  desist  from 
placing  any  gauge  or  other  obstruction,  to  prevent  or  diminish 
the  flow  of  water  from  the  canal  or  raceway  in  Boudinot  street 
in  and  upon  the  said  lot,  and  from  using  any  means  or  device  to 
cause  a  less  quantity  of  water  to  flow  into  and  upon  said  lot, 
than  has  been  accustomed  to  flow  thereon.  That  to  prevent  the 
use  on  said  lot  of.  more  than  twelve  inches  square  of  water,  the 
complainants,  on  the  10th  of  April,  1844,  built  a  stone  wall  in 
the  canal  on  Boudinot  street,  on  their  own  land,  opposite  the 
head-race  where  the  water  is  taken  from  said  canal  across  said 
lot,  and  fastened  therein,  on  a  level  with  the  bottom  of  said 
canal,  a  cast  iron  aperture  of  twelve  inches  square  in  the  inside, 
sufficient  for  the  flow  of  the  exact  quantity  of  water  to  be  used 
on  said  lot;  and  that  thereupon  certain  persons,  acting  under 
the  orders  of  said  Catharine,  entered  on  complainants'  land  and 
prostrated  the  said  wall,  though  forbid  so  to  do  by  the  complain- 
ants. That  the  complainants  can  safely  agree  to  furnish  from 
the  said  canal  only  22  square  feet  of  water,  and  that  they  have 
leased,  agreed  to  lease,  or  sold,  including  the  one  foot  so  sold 
to  be  used  on  said  lot,  22  square  feet,  to  be  taken  from  said  ca- 
nal ;  and  that,  if  there  shall  be  a  scarcity  of  water,  the  com- 
plainants fear,  if  the  occupants  of  said  lot  continue  to  draw 
more  than  a  foot  square,  the  complainants  will  be  subjected  to 
suits  for  damages,  by  others  to  whom  they  have  leased,  or  agreed 
to  lease,  or  sold  the  use  of  water.  That  the  occupants  of  said 
lot  now  use  about  three  square  feet  of  water,  and  refuse  to  al- 
low the  water  to  be  gauged  or  measured.  That  the  complain- 
ants have  lately  leased  several  feet  of  water,  to  be  taken 
from  said  canal,  at  $500  and  $600  per  annum  per  square 
foot,  and  have  lately  leased  surplus  water,  to  be  taken  from 
said  canal,  over  and  above  the  22  square  feet,  at  $500  per 
annum  per  square  foot,  on  certain  conditions;  and  that,  if 


SEPTEMBER  TERM,  1845.  129 

Society  for  Establishing  Manufactures  v.  Holsman. 

the  occupants  of  said  lot  shall  be  permitted  to  draw  more  than 
a  square  foot,  the  complainants,  in  a  time  of  scarcity,  will  be 
subject  to  suits  for  damages  on  their  covenants  in  said  leases; 
and  that  the  complainants  are  prevented  from  selling  or  leasing 
more  of  said  surplus  or  contingent  water,  by  reason  of  the  oc- 
cupants of  said  lot  using  more  than  they  are  entitled  to.  That 
the  complainants  have  commenced  a  suit  in  the  Supreme  Court 
against  said  Catharine  Holsman,  in  her  own  right  and  as  guar- 
dian of  said  infant  children,  to  recover  damages  for  the  use  of 
more  than  a  square  foot  of  water  on  said  lot,  which  suit  is  pend- 
ing and  undetermined.  The  said  Catharine,  widow,  adminis- 
tratrix and  guardian  as  aforesaid,  and  the  minor  children  of 
Daniel  Holsrnan,  deceased,  and  William  Parsons,  are  made 
defendants;  and  the  bill  prays  that  the  defendants  may  answer, 
&c.;  and  that  the  said  Catharine,  in  her  own  person,  and  act- 
ing as  guardian  as  aforesaid,  and  administratrix  as  aforesaid,  and 
the  said  Parsons,  may  be  enjoined  from  taking  from  the  said 
canal  any  more  water  than  will  run  through  an  aperture  of 
twelve  inches  square,  and  from  pulling  down  or  taking  out  any 
gauge  which  the  complainants  may  insert  for  the  purpose  of 
measuring  the  said  twelve  inches  square  of  water;  and  that 
this  court  may  direct  in  what  manner  the  said  twelve  inches 
square  of  water  shall  be  gauged  or  measured  ;  and  for  such 
other  and  further  relief,  &c. 

On  the  reading  of  the  bill,  an  order  was  made,  on  motion  of 
the  complainants'  counsel,  for  the  hearing  of  the  parties  on  an 
application  for  an  injunction,  as  prayed  by  the  bill,  on  notice 
to  the  defendants.  The  defendants  thereupon  put  in  their  an- 
swers, which  were  read  at  the  hearing. 

The  answer  of  Catharine  Holsrnau,  for  herself  and  as  admin- 
istratrix and  guardian  as  aforesaid,  admits  the  conveyances 
stated  iu  the  bill,  and  states  the  consideration  of  the  deed  from 
Colt  to  Parish  to  have  been  $3750,  and  the  consideration  of  the 
deed  irom  Parish  to  Holsman  to  have  been  $12,000;  and  states 
that  the  last- mentioned  deed  conveys  the  water  power  and  ap- 
purtenances in  the  following  words,  to  wit :  "  Together  with  the 
right  of  taking  from  the  canal  aforesaid,  twelve  inches  square  of 
water,  (say  equal  to  144  square  inches  of  water,)  together  with 
all  and  singular  the  buildings  and  improvements,  ways,  passa- 


130  CASES  IN  CHANCERY. 

Society  for  Establishing  Manufactures  v.  Holsman. 

ges,  waters,  water-courses,  rights,  liberties,  privileges,  heredita- 
ments and  appurtenances  thereunto  belonging,  or  in  any  wise 
appertaining."  .  That  she  has  heard  and  believes,  that  the 
channel  through  which  the  water  flows  across  the  premises  to 
the  mill  thereon,  was  constructed  before  Holsmafc  bought  the 
premises,  and  that  the  water  flowed  through  said  channel  be- 
fore he  bought,  and  has  ever  since  continued  to  flow  through 
the  same,  in  the  same  manner  it  did  at  the  filing  of  the  bill 
and  now  does;  that  the  cotton  mill  on  said  lot  was  built  by 
Parish  while  he  owned  the  lot,  and  has  always  been  driven  by 
the  water  flowing  through  said  channel,  ever  since  it  was  first 
put  in  operation.  She  admits  that  on  the  19th  of- October, 
1841,  she  leased  to  Stark  and  Parsons  the  said  lot  and  premises, 
except  a  strip  of  thirty-five  feet  wide  on  the  eastern  side  thereof, 
for  three  years;  and  that  on  the  28th  of  December,  1843,  the 
notice  stated  in  the  bill  to  have  been  left  at  the  office  of  Stark 
and  Parsons  on  the  premises,  was  so  left.  That  she  has  heard 
and  believes,  and  therefore  admits,  that  Sf,ark  applied  to  the 
complainants  to  hire  an  additional  foot  of  water,  but  that  she 
has  no  knowledge  of  any  agreement  by  Stark,  that  a  cast  iron, 
or  any  other  gauge,  should  be  inserted,  to  measure  or  limit  the 
flow  of  water  through  its  accustomed  channel ;  and  that  such 
application  and  agreement,  if  any  were  made,  were  made  with- 
out her  knowledge  or  consent,  and  contrary  to  her  wishes. 
That  after  the  lease  to  Stark  and  Parsons  expired,  Parsons  con- 
tinued in  possession  under  a  parol  agreement  for  a  lease,  and  is 
still  in  possession.  That  being  informed  that  the  complainants 
threatened,  and  were  preparing  to  obstruct  and  limit  the  flow 
of  water  through  said  ancient  channel,  so  as  to  cause  a  less 
quantity  to  flow  than  had  been  customary  for  more  than  thirty 
years,  she  gave  the  notice  to  the  complainants  stated  in  their 
bill.  That  she  believes,  and  therefore  admits,  that  the  com- 
plainants never  leased  or  sold,  to  Colt,  Parish  or  Holsman,  or 
any  other  person,  to  be  used  on  said  lot,  any  other  water-power 
than  that  described  in  the  deeds  before  mentioned.  She  admits 
the  building  of  the  stone  wall  and  placing  the  gauge  therein  by 
the  complainants,  as  stated  in  the  bill;  but  says  she  is  inform- 
ed by  competent  judges,  and  believes  and  charges,  that  the 
tame  was  so  placed  as  not  to  admit  the  passage  of  more  than 


SEPTEMBER  TERM,  1845.  131 

Society  for  Establishing  Manufactures  v.  Holsman. 

half  the  water  that  would  flow  through  the  same  gauge,  if 
placed  in  a  proper  position  for  gauging  a  foot  of  water  on  the 
same  level ;  and  she  admits  that,  for  the  reason  that  she  did 
uot  believe  the  society  had  any  right  to  place  a  wall  or  gauge 
in  that  or  any  other  place  that  would  obstruct,  diminish,  or 
alter  the  flow  of  water  through  said  channel,  she  caused  said 
wall  and  gauge  to  be  removed,  so  as  to  leave  the  said  channel 
communicating  with  said  canal,  as  the  same  had  heretofore  been, 
doing  no  unnecessary  damage.  That  she  has  no  knowledge  of 
the  quantity  of  water  used  on  the  premises,  but  is  informed  and 
believes  that  the  channel  which  draws  the  water  is  the  same 
as  it  has  been  for  thirty  years  prior  to  the  filing  of  the  bill ;  and 
that  no  more  water  passes  through  the  same  than  has  been 
accustomed  to  flow  through  it  for  the  said  period  of  thirty  years. 
She  denies  that  Holsman  never  claimed  a  right  to  more  than 
one  square  foot  of  water,  if  more  than  that  has  been  accustomed 
to  flow  on  and  over  said  lot,  and  alleges  that  Holsman,  at 
all  times,  claimed  a  right  to  all  the  water  that  was  accustomed 
to  flow  through  the  said  channel.  She  says  she  has  no  knowl- 
edge how  much  water  the  complainants  can  agree  to  furnish 
on  said  canal,  nor  how  much  they  have  sold,  leased,  or  agreed 
to  lease ;  nor  what  quantity  of  machinery  was  in  the  mill  on 
said  lot  when  Holsman  took  possession  thereof  under  the  deed 
to  him  ;  nor  what  machinery,  if  any,  he  put  therein  from  time 
to  time ;  nor  what  machinery  Stark  and  Parsons,  or  Parsons, 
used  therein,  other  than  that  they  used  a  part  of  the  same 
machinery  that  was  therein  at  the  death  of  Holsman ;  nor  what 
quantity  of  water  is  required  to  drive  said  machinery  success- 
fully. That  when  Holsman  entered,  the  channel  through 
which  the  water  now  flows  upon  said  lot,  was  open,  and  was 
and  ever  since  has  been  of  the  same  size,  and  the  same,  in  all 
things,  as  it  is  now;  and  that  the  customary  flow  of  water 
through  said  channel  has  been  the  same  from  that  time  to  the 
present,  excepting  some  diminution  thereof,  for  several  years  last 
past,  caused  by  the  water  in  said  canal  being,  during  that  time, 
considerably  lower  than  it  had  heretofore  been,  and  that  the 
possession  of  said  mill  lot  and  channel,  and  the  use  of  said 
water,  has  been  uninterrupted,  and  has,  at  all  times,  been  under 
a  claim  of  title  to  the  said  mill,  lot,  and  channel,  and  to  the 


132  CASES  IN  CHANCERY. 

Society  for  Establishing  Manufactures  v.  Holsman. 

use  of  all  the  water  flowing  through  and  over  the  same,  and 
adverse  to  any  claim  or  right  of  the  complainants,  or  of  any 
other  person  thereto. 

That  she  is  informed  and  believes  and  charges  that,  at  the 
several  times  of  the  said  several  conveyances  to  Colt,  .and  to 
Parish  and  to  Holsman,  and  for  a  long  period  subsequent  there- 
to?  the  usual  height  of  water  in  the  canal  was  materially  greater 
than  at  the  time  of  the  filing  of  the  bill,  and  now  is  and  has 
been,  on  an  average,  for  more  than  a  year  last  past;  and  that, 
by  reason  thereof,  the  quantity  of  water  that  would  flow  through 
a  given  aperture  on  the  bottom  of  the  canal,  would  now  be 
much  less  than  at  the  before-mentioned  periods;  and  that,  by 
reason  thereof,  it  would  be  contrary  to  equity,  even  in  the 
absence  of  any  title  in  the  defendants  to  the  customary  flow  of 
water  in  the  said  channel,  to  restrain  them,  by  injunction,  from 
using  more  than  a  square  foot  of  water,  without  first  requiring 
the  complainants  to  raise  and  keep  the  water  in  said  canal  at 
its  former  level. 

The  answer  of  Parsons  was  also  put  in,  and  was  read  at 
the  hearing,  by  consent  of  counsel,  for  such  (if  any)  considera- 
tion as  the  court  should  think  it  entitled  to.  He  admits  that,  in 
February,  1842,  Catharine  Holsman  leased  the  mill,  machinery, 
and  water-power  to  him  and  Stark,  for  three  years,  and  that 
they  ran  the  mill  during  that  time.  That  before  the  expira- 
tion of  their  lease,  the  complainants  gave  to  Mrs.  Holsman 
the  notice  stated  in  the  bill ;  that,  thereupon,  he  and  Stark  ver- 
bally agreed  to  lease  of  the  complainants  an  additional  square 
foot  of  water,  at  $400  for  about  ten  months,  and  that  a  gauge 
should  be  inserted  so  as  to  draw  but  two  square  feet;  but  that 
said  Catharine  forbid  them  from  so  doing,  and  from  allowing 
the  water  to  be  gauged  or  measured ;  and  that,  thereby,  the  said 
negotiation  was  broken  off.  He  admits  that,  while  he  and 
Stark  occupied,  they  used  more  than  a  square  foot  of  water, 
and,  as  he  thinks,  between  two  and  three  square  feet,  but  saya 
he  has  never  gauged  or  measured  it;  that,  since  the  expiration 
of  the  lease,  he,  occupying  under  said  Catharine,  has  used 
about  the  same  quantity  of  water  that  was  used  by  him  and 
Stark;  that  he  is  willing,  and  always  has  been,  to  pay  the 
complainants  for  whatever  water  he  might  use  on  said  lot  over 


SEPTEMBER  TERM,  1845.  133 

Society  for  Establishing  Manufactures  v.  Holsman. 

and  above  a  square  foot ;   but  that  he  has  been  prevented  from 
doing  so  by  the  opposition  of  the  said  Catharine. 

He  admits  that  the  complainants  gave  the  notice  stated  in  the 
bill,  and  built  the  wall,  and  inserted  the  cast  iron  aperture,  as 
stated  in  the  bill  ;  and  that  the  same  was  prostrated  by  the  order 
of  said  Catharine  Holsman. 


A.  S.  Pennington  moved  for  the  injunction.  He  cited  19 
Vesey  155  ;  1  Harrison  344;  Blanchard  on  Limitations  14;  2 
John.  Ch.  Rep.  164;  4  Ib.  293;  1  Scho.  and  Lef.  8  ;  Green- 
leafs  Evid.  125 ;  8  Cowen  589,  603  ;  1  Paige  447. 

BarJcalow  and  P.  D.  Vroom,  contra,  cited  Saxton  518,  718  ; 
Eden  on  In/.  138,  139,  390  ;  76.  104 ;  3  Pick.  269  ;  8  76.  509  ; 
16  76.  241  ;  Angett  on  Water  Courses  93  ;  6  East  208  ;  1  Campb. 
163;  4  Mason  402;  4  Wash.  C.  O.  R.  607  ;  2  Vern.  390  ;  Ad- 
am18  Eject.  51.  486  ;  Cro.  Jac.  126  ;  6  Ves.  51,  147  ;  1  Brown's 
Ch.  588  ;  2  76.  65  ;  1  Coxe  102,  103  ;  Jeremy's  Eq.  Jur.  310  ; 
18  Ves.  516;  6  John.  Ch.  Rep.  19;  4  76.  21  ;  3  Halst.  139; 
3  Paige  214  ;  1  Bay  375  ;  2  Perm.  R.  452. 

THE  CHANCELLOR.  The  nature  of  the  case  presented  by 
this  bill,  as  well  as  the  prayer  of  the  bill,  shows  that  the  per- 
manent relief  sought  by  the  complainants  is,  that  the  owners 
and  occupants  of  the  premises  be  confined,  in  their  use  of  water 
thereon,  to  the  quantity  that  will  run  through  an  aperture  of 
tweJve  inches  square;  and  to  that  end  the  bill  prays  that  this 
court  may  direct  in  what  manner  the  said  twelve  inches  square 
of  water  shall  be  taken  from  the  canal  on  Boudinot  street,  and 
in  what  way  the  same  shall  be  gauged  or  measured  ;  and  that 
the  owners  and  occupants  be  enjoined  from  taking  more  water, 
or  from  taking  the  quantity  in  any  other  manner,  or  by  any 
other  mode  of  measurement,  than  shall  be  directed  by  the 
court. 

The  relief  sought  is  resisted  on  one  main  ground,  from 
which  two  positions  of  defence  are  taken  by  the  answer  of  the 
widow  and  administratrix  and  guardian  of  the  minor  children. 

That  ground  is,  that  the  quantity  of  water  now  drawn  from 


134  CASES  IN  CHANCERY. 

Society  for  Establishing  Manufactures  v.  Holsman. 

the  canal  is  the  same  as  was  originally  drawn  under  the  deed 
from  the  society,  and  that  the  mode  of  drawing  it  is  the  same, 
and  that  both  the  quantity  drawn  and  the  mode  of  drawing  it 
have  continued  the  same  during  the  thirty  years  or  more  that 
have  since  elapsed. 

This  ground  is  relied  upon,  first,  as  evidence  of  right  to  the 
quantity  drawn,  even  as  against  the  deed,  if  it  should  appear 
that  more  than  the  quantity  mentioned  in  the  deed  is  drawn  ; 
and,  second,  as  evidence  that  the  particular  mode  used  of  taking 
the  water  was  adopted  and  assented  to  as  a  sufficiently  accu- 
rate mode  of  drawing  the  quantity  of  water  mentioned  in  the 
deed. 

These  positions  involve  so  much  for  consideration  and  de- 
cision, that  it  will  hardly  be  expected  that  the  court  will  finally 
decide  upon  them  on  the  bill  and  answer.  If  I  were  willing 
now  to  say  that  a  new  mode  of  drawing  the  water  should  be 
adopted,  there  is  not  enough  in  the  bill  and  answer  to  enable 
me  to  direct  the  proper  mode  of  drawing  the  specified  quantity. 
This  belongs  to  the  permanent  relief  sought  by  the  bill,  if  the 
complainants  finally  prevail. 

From  the  nature  of  the  element  we  are  to  deal  with,  and  the 
want  of  any  mode  prescribed  in  the  deed  for  taking  the  specified 
quantity,  it  is  clear  that  the  court  will  need,  for  the  guidance  of 
its  judgment,  facts  and  scientific  information  which  the  bill  and 
answer  do  not  give,  and  which  can  be  furnished  only  by  the 
testimony  of  witnesses. 

If,  as  the  complainants  contend,  the  water  should  be  drawn 
from  their  canal  through  an  aperture  of  a  foot  square,  where 
.should  the  aperture  be?  in  what  part  of  the  wall,  in  reference 
to  the  line  of  the  current?  under  what  head  of  water?  Js  the 
water  to  flow  through  the  aperture  against  the  resistance  of  water 
in  the  channel  to  the  mill  at  the  same  level  with  the  water  in 
the  canal,  or  is  it  to  flow  without  other  resistance  than  that  of 
the  air?  What  was  the  height  of  water  in  the  canal  when  the 
grant  was  made  ? 

It  is  clear  that  a  final  decision  of  the  controversy  cannot  now 
be  made;  a  perpetual  injunction  could  not  now  be  asked. 

JJnt  the  complainants  ask  that  an  injunction  be  now  granted, 
to  be  hereafter  made  perpetual,  or  be  dissolved,  as  the  case  shall 


SEPTEMBER  TERM,  1845.  135 

Society  for  Establishing  Manufactures  v.  Holsman. 

finally  turn.  In  what  terms  should  such  injunction  be  expressed? 
Could  it  be  in  the  language  of  the  prayer,  enjoining  the  de- 
fendants "  from  taking  from  the  canal  any  more  water  than  will 
run  through  an  aperture  of  twelve  inches  square,  and  from 
pulling  down  and  taking  out  any  gauge  which  the  complainants 
may  insert  for  the  purpose  of  measuring  the  said  twelve  inches 
square  of  water?"  To  this  there  are  conclusive  objections. 
First,  it  would  be  deciding  in  this  stage  of  the  cause,  that 
a  new  mode  of  taking  the  water  is  now  to  be  adopted,  and 
"hat,  notwithstanding  the  lapse  of  time,  the  defendants  may 
now  be  restrained  to  strict  measure.  Next,  it  would  be  to  de- 
clare that  the  complainants  have  the  right  to  determine  where 
the  aperture  should  be,  a  position  which,  it  is  sufficient  for  me 
now  to  say,  is  at  least  doubtful.  Indeed,  it  is  opposed  to  the 
next  branch  of  the  prayer  of  the  bill,  which  is  that  this  court 
may  direct  in  what  manner  the  foot  square  shall  be  taken,  and 
how  it  shall  be  measured.  The  counsel  for  the  complainants, 
perceiving,  no  doubt,  this  difficulty,  asked  only  that  an  injunc- 
tion should  go  in  the  language  of  the  deed,  restraining  the  de- 
fendants from  taking  more  than  twelve  inches  square  of  water. 
This  is  still  subject  to  the  first  objection  above  stated,  and  is  also 
subject  to  another  objection,  arising  from  the  position  taken  by 
Daniel  Holsman,  deceased,  in  1827,  when  the  first  notice  was 
given  to  him.  The  bill  states  that  he  then  put  himself  on  the 
ground  that  he  did  not  use  more  than  a  foot  square.  Suppose, 
then,  the  injunction  should  go  as  asked  by  the  counsel  for  the 
complainants,  and  the  defendants  should,  notwithstanding,  con- 
tinue to  use  the  water  as  it  has  heretofore  been  used,  and  an 
attachment  should  be  applied  for.  Is  there  enough  now  before 
the  court  to  enable  it  to  determine  that  more  than  the  foot 
square  contemplated  by  the  deed,  if  taken  as  it  should  be  taken 
under  the  terms  of  the  deed,  is  used  ?  The  court  would  be  in 
the  same  difficulty  on  the  application  for  an  attachment,  as  it 
is  now  in,  in  reference  to  the  principal  points  of  controversy. 
Would  the  court,  on  that  application,  first  direct  the  mode  in. 
which  the  water  should  be  taken  and  measured,  in  order  to  see 
whether  more  than  the  proper  foot  square  was  taken,  and 
thereby  to  determine  whether  the  injunction  had  been  diso- 
beyed ? 


136  CASES  IN  CHANCERY. 

Society  for  Establishing  Manufactures  v.  Holsman. 

The  answer  of  a  mere  tenant  of  the  principal  defendant,  that 
he  thinks  he  is  using  more  than  a  foot  square,  though  he  has 
never  measured  it,  would  not  be  sufficient  ground  for  an  attach- 
ment. 

I  forbear  entering  at  this  time  into  an  examination  of  the 
principal  points  of  controversy  in  the  case.  I  am  satisfied  that 
a  state  of  affairs  which  has  existed  for  thirty  years,  and  in  re- 
ference to  which  the  remedy  is  such  as  must  be  applied  if  the 
complainants  succeed,  should  not  be  disturbed  by  a  preliminary 
injunction.  No  alteration  of  that  state  of  affairs  is  threatened, 
or  impending,  and  by  the  complainants'  own  showing,  the  same 
state  of  affairs  has  continued  for  eighteen  years,  or  thereabouts, 
since  they  gave  notice  to  Daniel  Holsman  to  confine  himself  to 
the  foot  square,  and  since  they  received  his  answer  that  he  was 
not  using  more;  to  say  nothing  of  the  right  claimed  from  long 
user,  if  the  quantity  used  should  turn  out  to  be  more. 

The  late  leases  or  agreements  to  lease,  or  sales,  by  the  com- 
pany, stated  in  their  bill,  are  not  considered  as  making  any  such 
alteration  in  the  state  of  affairs  between  the  complainants  and 
the  defendants,  as  can  be  regarded  on  this  motion. 

The  injunction  is  denied. 


SEPTEMBER  TERM,  1845.  137 

Van  Hook  v.  Somerville  Manufacturing  Co. 


WILLIAM  VAN  HOOK  v.  THE  SOMERVILLE  MANUFACTURING 
COMPANY  ET  AL. 

1.  The  act  incorporating  the  Somerville  Manufacturing  Company  provides 
that  the  stock,  property  and  concerns  of  the  company  shall  be  managed  and 
conducted  by  five  directors,  one  of  whom  shall  be  president ;  and  that  the 
president  and  directors,  or  a  majority  of  them,  shall  and  may  appoint  such 
officers,  superintendents  and  agents  as  they  may  think  proper  ;  and  that  the 
president  and  directors,  or  a  majority  of  them,  shall  have  power  to  call  in  in- 
stallments on  the  stock.     Can  two  of  three  directors  assembled  make  a  mort- 
gage of  the  lands  of  the  company? 

2.  Can  two  of  three  directors  assembled  make  a  mortgage  to  the  third  ? 

3.  The  book  of  minutes  of  a  corporation  is  only  prima  facie  evidence  of  the 
correctness  of  the  entries  made  in  it.     The  appearance  of  the  minutes  may, 
of  itself,  raise  so  strong  a  suspicion  against  the  regularity  of  the  proceedings, 
thai  no  weight  will  be  given  to  them. 

4.  The  corporate  seal  may  be  affixed  by  a  le<*  number  of  directors  than  ia 
necessary  to  constitute  a  board,  if  it  be  done  by  the  direction  of  a  legal  board. 

5.  If,  on  a  notice  to  all  the  directors,  a  meeting  be  held  at  which  some  of 
them  do  not  attend,  and  an  adjournment  is  made  to  a  subsequent  day,  is  the 
meeting  on  the  subsequent  day  a  meeting  on  due  notice  to  all  the  directors  ? 

6.  The  consent  of  a  director  not  sitting  in  a  legal  board  is  nugatory. 

7.  If  a  mortgage  be  given,  even  by  a  competent  board  of  directors,  to  one 
of  their  number,  who  is  the  financial  agent  of  the  company,  to  enable  him  to. 
raise  money  for  the  company,  on  his  representation  that  the  money  needed! 
by  the  company  could  not  be  raised  on  the  bond  and  mortgage  of  the  com-- 
pany  given  directly  to  any  lender  ;  or  after  failure  so  to  raise  money  for  the. 
company,  and  on  his  representation  that  he  could  raise  the  money  on  a  bond' 
and  mortgage  of  the  company  executed  to  him,  by  an  assignment  of  it,  allow- 
ing a  greater  rate  of  interest  than  the  legal  interest,  it  would  be  a  fraud  on 
the  company  to  enforce  the  mortgage  against  them  as  a  mortgage  to  him  for 
his  own  use  and  benefit,  and  if  he  attempt  to  do  so,  he  will  be  held  to  have 
procured  it  by  fraud. 

8.  In  general,  fraud  in  the  obligee  in  obtaining  a  bond  is  a  good  defence 
against  an  assignee  of  the  bond,  though  he  be  a  bonafide  purchaser  of  it  with- 
out notice  of  the  fraud.     But  it  was  held,  that  a  buna  fide  assignee,  without 
notice,  of  a  bond  and  mortgage  given  under  the  circumstances  and  for  the 
object  before  stated,  might  enforce  them  against  the  company. 

9.  Certain  certificates  of  the  director  who  was  president,  one,  signed  by  him 
as  an  individual,  stating  that  the  bond  and  mortgage  was  executed  by  him  a« 
president,  by  order  of  the  board,  "  as  said  amount  was  due  the  obligee  aa 

VOL.  i.  I 


138  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

agent  of  the  company,"  and  the  other,  signed  by  him  as  president,  staling 
that  the  board,  having  examined  the  account  of  the  obligee  against  the  com- 
pany, did  pass  the  same  and  acknowledge  a  balance  due  the  obligee  of 
$9638.17  ;  and  a  copy,  signed  by  the  secretary  of  the  company,  of  what  pur- 
ported to  be  a  resolution  of  the  board,  that  the  bond  and  mortgage  was  a  legal 
and  subsisting  liability  of  the  company,  and  that  they  had  no  defence  to  make 
to  the  same  ;  which  writings  were  procured  by  the  obligee  to  aid  him.  as  he 
said,  in  negotiating  the  bond  and  mortgage  ;  were  exhibited  on  the  part  of  the 
complainant,  to  show  good  faith  in  taking  the  assignment.  Before  the  com- 
plainant took  the  assignment,  he  was  told  by  the  president  that  he,  the  presi- 
dent, considered  the  property  would  be  worth  $ 20,000  when  in  operation  ; 
that  if  he,  the  complainant,  had  the  money  to  spare,  he  could  not  put  it  out 
more  safely  ;  that  they  were  anxious  to  gel  the  money  and  have  the  works  in 
operation,  and  that  if  they  could  obtain  the  money  on  the  bond  and  mortgage, 
they  would  be  able  to  put  the  works  in  operation.  After  this,  the  complain- 
ant took  the  assignment  of  the  bond  and  mortgage,  and  in  exchange,  or  alleged 
exchange,  therefor,  made  a  deed  of  leasehold  property  in  New  York  to  a  son 
of  the  obligee  ;  and  the  complainant  produced  in  evidence  a  certified  copy  of 

a  mortgage  made  by  the  son  to  one Morgan,  dated  August  23d,  1842. 

There  was  no  evidence  given  to  show  when  the  assignment  to  the  complainant 
was  delivered,  or  the  deed  to  the  son — whether  on  the  same  day  the  mortgage 
was  made  by  the  son  or  not ;  but  it  appeared  that  an  assignment  of  the  bond 
and  mortgage  was  left  by  the  obligee  in  the  office  of  the  clerk  of  Somerset,  on 
the  1st  of  August,  1842,  and  recorded  after  the  9th  of  August,  1842.  No  ac- 
count was  given  of  the  mortgage  made  by  the  son,  except  that  the  witness  of 
the  complainant,  who  produced  the  certified  copy  of  it,  stated  that  he  had 
seen  it  in  New  York  the  morning  of  the  day  of  his  examination,  in  the  hands 
of  one  Edward  P.  Clark,  and  that  "  he  could  not  get  the  original  out  of  the 
office — they  refused  to  let  him  have  it."  Held,  that  the  complainant  could 
not  be  considered  a  bona  fide  purchaser  of  the  bond  and  mortgage  for  consid- 
eration paid ;  and  held,  further,  that  the  information  he  received  from  the 
president  was  sufficient  notice  to  overcome  the  evidence  he  offered  of  bona 
fides,  if  that  had  been  sufficient  to  show  it. 


On  the  10th  of  January,  1842,  a  bond  for  $9600,  and  a 
mortgage  on  the  real  estate  of  the  Somerville  Manufacturing 
Company  to  secure  the  payment  thereof  on  or  before  January 
5th,  1845,  were,  or  purported  to  have  been,  executed  by  the 
said  company  to  Jared  N.  Stebbins,  a  director  of  the  company. 
They  are  signed  "  John  I.  Gaston,  president  of  the  Somerville 
Manufacturing  Company,"  with  an  ordinary  seal  annexed. 
The  concluding  clause  of  each  runs  thus — "In  testimony  where- 
of, John  I.  Gaston,  president  of  said  company,  hath  hereunto 
set  his  hand  and  affixed  the  seal  of  the  said  company,  by  order 


SEPTEMBER  TERM,  1845.  130 

Van  Hook  v.  Somervill?  Manufacturing  Co. 

of -the  said  company."  The  certificate  of  the  officer  who  took 
the  acknowledgment  of  the  mortgage,  states  that  said  Gaston, 
known  to  him  as  president  of  the  said  company,  appeared  be- 
fore him,  and,  he  being  satisfied  that  the  said  company  are  the 
grantors  mentioned  in  the  deed,  and  having  made  known  to 
the  said  Gaston  the  contents  thereof,  he  did  acknowledge  that 
he  signed,  sealed  and  delivered  the  said  instrument  as  his  vol- 
untary act  and  deed  for  the  uses  and  purposes  therein  expressed, 
and  that  he  sealed  the  same  with  the  seal  adopted  by  the  said 
company,  and  by  the  order  and  direction  of  the  board  of  di- 
rectors of  the  said  company.  This  instrument  was  recorded  in 
the  clerk's  office  of  the  county  of  Somerset,  on  the  26th  March, 
1842. 

Stebbins,  on  the  25th  of  July,  1842,  executed  a  sepa- 
rate instrument  under  seal,  in  the  presence  of  a  subscribing 
witness,  and  acknowledged  before  a  judge  of  the  Common  Pleas 
of  Somerset  county  on  the  26th  of  that  month,  assigning  the 
said  bond  and  mortgage  to  William  Van  Hook,  the  complain- 
ant. This  assignment  was  delivered  in  the  clerk's  office  of 
Somerset,  by  Stebbins,  on  the  1st  of  August,  1842,  and  re- 
corded after  the  mortgages  left  in  said  office  for  record  on  the 
8th  and  9th  of  August,  1842;  and  was  delivered  to  Mr.  Blau- 
velt,  the  complainant's  solicitor,  on  the  10th  of  May,  1843. 

Van  Hook  exhibited  his  bill  for  the  foreclosure  of  the  said 
mortgage,  and  made  the  Somerville  Manufacturing  Company, 
and  Luther  Loomis  and  Samuel  P.  Lyman,  who  claim  the  pro- 
perty under  a  deed  from  the  company,  and  certain  judgment 
creditors  of  the  company,  defendants.  A  decree  pro  cortfesso 
has  been  entered  against  the  company  and  the  judgment  cre- 
ditors. The  defence  arises  under  the  answer  of  Loomis  and 
Lyman  and  the  proofs  in  the  cause. 

The   nature  of  the   defence   will   sufficiently   appear  in  the. 
opinion  of  the  Chancellor. 

The  testimony  in  the  cause  is  as  follows : 

George  H.  Brown,  for  complainant. — On  being  shown  the 
bond,  he  says  he  is  the  subscribing  witness,  and  saw  it  exe- 
cuted by  John  I.  Gaston,  president  of  the  company,  and  who 
was  then  reputed  president;  the  seal  annexed  was  then  adopt- 
ed by  the  board  of  directors  for  the  express  purpose  ;  he  is  also 


140  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

subscribing  witness  to  the  mortgage;  it  was  executed  in  his 
presence  by  said  Gaston,  president  as  aforesaid. 

On  cross-examination,  he  says  Stebbins  called  on  him  and 
requested  him  to  prepare  according  to  law  the  said  bond  and 
mortgage;  he  suggested  to  Stebbins  that  the  board  must  adopt 
a  seal ;  on  reflection,  he  cannot  say  he  was  present  when  the 
seal  was  adopted,  or  whether  he  was  afterwards  told  that  the 
seal  had  been  adopted ;  does  not  know  that  notice  was  given 
of  the  time  and  place  of  meeting  when  the  bond  and  mortgage 
were  executed,  or  seal  adopted  ;  he  has  no  personal  knowledge 
of  a  resolution  of  the  board  to.  give  this  bond  and  mortgage  ; 
but  at  the  time  it  was  done,  a  resolution  was  produced,  and  the 
secretary,  Joseph  A.  Gaston,  was  present,  directing  or  authori- 
zing said  bond  and  mortgage  to  be  given  ;  witness  supposes 
this  was  the  original  resolution  which  had  passed  the  board  for 
that  purpose ;  the  resolution  was  shown  deponent,  and  the 
bond  and  mortgage  were  executed  at  the  house  of  Joseph  A. 
Gaston,  secretary,  in  Somerville;  the  persons  present  were 
John  I.  Gaston,  president;  Jared  N.  Stebbins,  a  director;  Joseph 
A.  Gaston,  secretary,  and  he  thinks,  William  Packer,  another 
director;  the  meeting  was  for  the  purpose  of  executing  tht 
bond  and  mortgage,  and  the  said  resolution  was  produced  to 
satisfy  witness  that  it  was  correct ;  the  secretary  kept  a  book  of 
minutes. 

A  paper  writing,  purporting  to  be  a  true  copy  of  a  resolution 
from  the  minutes  of  the  said  Somerville  Manufacturing  Com- 
pany, signed  "  J.  A.  Gaston,  secretary,"  dated  28th  June,  1842. 
is  produced,  and  marked  Exhibit  C  on  the  part  of  the  complain- 
ant. The  witness  says  it  is  in  the  handwritng  of  Joseph  A. 
Gaston,  secretary. 

The  assignment  of  the  bond  and  mortgage  by  Stebbins  to 
the  complainant,  and  marked  Exhibit  D  on  the  part  of  the  com- 
plainant, is  admitted  by  Thomson,  solicitor  for  the  defendants 
Loorais  and  Lyman. 

Willfam  Packer,  for  the  defendants. — He  was  a  managei 
(t.  e.t  director)  on  the  10th  of  January,  1842,  and  for  tJie  year 
preceding ;  Ibboteon  and  Van  Renselaer  lived  out  of  the  state; 
the  company  were  then  engaged  in  putting  up  the  screw  facto- 
ry, foundry  and  blacksmith  shop,  and  getting  other  machinery  j 


SEPTEMBER  TERM,  1845.  141 

Van  Hook  v.  Somerville  Manufacturing  Co. 

there  was  a  log  for  the  shaft  which  had  laid  there  six  months, 
partly  dressed,  and  they  could  not  get  along  any  further,  for 
the  want  of  money;  at  this  time  he  had  received  for  work  he 
had  done  between  $3000  and  $4000,  on  the  notes  of  Wall 
and  Nevius,  given  to  him  by  Stebbins ;  he  never  got  any  money 
from  Stebbins;  Stebbins,  who  was  agent  of  the  company,  at 
a  meeting  of  the  board,  stated  that  there  was  a  debt  of  about 
$2000  against  the  company,  and  that  they  could  start  the 
works  if  they  could  raise  $5000  or  $6000,  besides  paying  the 
debt;  through  the  six  months  prior  to  the  10th  of  January, 
Stebbins  held  out  inducements  to  him  to  go  on  with  the  work, 
and  said  he  could  raise  money  by  a  loan  on  a  bond  and  mort- 
gage of  the  company;  at  the  time  he  called  us  together,  about 
the  1st  of  January,  1842,  he  said  he  could  not  raise  the  money 
in  this  way,  and  that  he  would  have  to  give  a  higher  interest, 
or  pay  a  premium  to  raise  the  money,  and  then  proposed  a 
plan  how  he  could  raise  the  money  to  complete  the  works; 
this  plan  was  to  give  him  a  valid  mortgage  for  the  amount 
they  would  want ;  witness  objected  to  it,  on  the  ground  that 
the  company  owed  him  a  great  deal  of  money,  and  that  he  did 
not  know  that  they  owed  Stebbins  a  cent ;  witness  did  not 
think  it  safe  to  give  Stebbins  a  mortgage;  Stebbins  assured 
them  it  was  the  only  way  they  could  ever  get  the  works  going ; 
through  Mr.  Van  Renselaer,  witness  was  induced  to  agree  to 
the  plan  5  Van  Renselaer  said  he  knew  Stebbins  could  not 
raise  the  money  the  other  way,  i.  e.t  by  a  mortgage  from  the 
company  to  the  lender,  because  he  would  have  to  give  a  pre- 
mium on  it,  and  therefore  proposed  that  the  mortgage  should 
be  given  to  Stebbins,  in  his  own  name,  and  stated  that  in  that 
way  the  money  could  be  obtained  ;  this  was  Stebbins'  plan, 
and  advocated  by  Van  Renselaer;  this  was  about  the  1st  of 
January  ;  John  I.  Gasto'n,  Stebbins,  and  he,  were  the  only 
managers  present  when  the  mortgage  was  given,  on  the  10th 
cf  January  ;  either  Stebbins  or  John  I.  Gastou  called  on  him, 
and  requested  him  to  meet  at  Mr.  Brown's  office  or  house,  in  the 
evening,  at  the  time  the  mortgage  was  given;  witness  does  not 
know  that  other  members  of  the  board  were  notified  to  meet; 
he  never  had  a  thought  but  that  this  mortgage  was  given  to 
jaise  money  to  pay  the  debts  of  the  company  and  start  the 


142  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

works ;  Stebbins  said  the  money  was  wanted  to  pay  $2000  the 
company  owed,  and  to  start  the  works;  and  that  it  would  take 
about  $5000  or  $6000  to  complete  the  works  ;  John  I.  Gaston 
suggested  that  it  would  take  more  than  $2000  to  pay  -the  debts, 
and  therefore  the  mortgage  was  made  for  more  than  $8000  ;  it 
was  made  for  $9600;  witness  was  contractor  for  building  the 
works,  and  a  great  deal  of  money  was  due  him  ;  Stebbins 
said  he  wanted  to  pay  Theodore  Young  some  money  and 
some  at  New  Hope  for  castings;  also  a  debt  due  the  State  Bank 
at  Elizabeth  ;  witness  never  knew  there  was  any  money  raised 
on  the  bond  and  mortgage  to  pay  the  debts  of  the  company ; 
he  never  got  any  of  it ;  not  one  of  the  debts  named  by  Steb- 
bins has  ever  been  paid  ;  they  stand  just  as  they  were;  through 
the  inducements  held  out  to  witness  by  Stebbins,  and  letters  he 
wrote  to  Gaston,  he  went  on  with  the  works  and  nearly  com- 
pleted them ;  the  inducements  named  by  Stebbins  were,  that 
he  was  negotiating  the  mortgage,  and  would  get  the  money 
and  pay  witness  for  his  work ;  he  was  finally  compelled  to  sus- 
pend his  work;  the  foundry  was  still  unfinished;  the  mill- 
wright came  with  four  or  five  hands,  and  worked  at  the  mill 
two  months ;  they  were  induced  to  come  by  Stebbins ;  they 
then  stopped  and  would  not  work  another  stroke ;  they  told 
witness  they  were  going  to  be  deceived  by  Stebbins;  they  got 
nothing  but  about  $80,  in  trade,  from  Mr.  Steele's  store ;  this 
he  understood  from  Mr.  Young;  the  castings  were  left  at 
Bound  Brook,  and  Stebbins  could  not  get  them  up,  as  he  could 
get  no  one  to  \Vork  for  him  ;  and  there  they  lay  till  the  next 
October;  during  the  time  he  was  negotiating  in  New  York 
for  the  money,  he  said,  frequently,  there  would  be  gentlemen 
up  to  see  the  works,  and  wanted  us  to  show  them  as  much  as 
we  could,  and  make  things  as  favorable  as  possible ;  after  this 
he  told  us  there  must  be  one  more  thing  done;  there  must  be 
some  resolutions  passed  to  suit  Mr.  Blauvelt ;  these  resolutions 
were  passed,  but  whether  witness  was  present  or  not,  he  cannot 
say  ;  he  wrote  to  John  I.  Gaston  that  he  wanted  a  certificate 
from  the  president  of  the  company,  to  show  that  the  company 
owed  him  the  money  ;  at  the  time  the  mortgage  was  executed, 
witness  wanted  Stebbins  to  give  him  a  writing  to  show  to  the 
other  persons  interested  why  they  had  acted  as  they  did,  and 


SEPTEMBER  TERM,  1845.  143 

Van  Hook  v.  Somerville  Manufacturing  Co. 

that  the  mortgage  was  given  only  to  raise  money  to  pay  the 
debts  and  start  the  works,  and  not  to  pay  Stebbins,  for  witness 
never  knew  that  the  company  owed  him  anything;  witness 
insisted  on  this  at  both  of  the  meetings;  Stebbins  assured  him 
it  was  not  necessary;  that  he  was  the  agent  of  the  company, 
and  that  what  he  did  would  be  right;  he  said  he  did  not  want 
it  known  that  he  had  taken  the  mortgage  in  his  own  name, 
and  if  he  gave  a  writing,  he  was  fearful  it  would  get  out;  he 
said  he  was  the  agent  of  the  company,  and  if  it  got  out  among 
the  people  that  the  money  was  not  coming  to  him,  he  would  be 
censured,  and  then  he  would  not  be  able  to  get  along,  but  that 
he  wished  it  kept  still  till  he  got  the  works  started ;  witness 
(old  him  that  he,  witness,  had  told  Judge  Nevius  all  they  had 
done;  Stebbins  said  he  had  done  wrong,  and  that  he  was 
afraid  witness  would  defeat  him  in  getting  the  money ;  witness 
tohl  General  Wall,  when  he  saw  him,  what  they  had  done — 
that  the  mortgage  was  given  to  Stebbins  to  raise  money  to  pay 
the  debts  and  start  the  works;  witness  was  present  at  a  meet- 
ing of  the  water-power  company,  when  Stebbins  applied  for  a 
lease  of  water  for  the  manufacturing  company,  and  stated  that 
he  could  not  negotiate  his  loan  till  he  got  the  lease ;  this  was 
in  June  or  July,  1842;  at  the  time  the  mortgage  was  given, 
Stebbins  had  received  from  Wall  and  Nevius,  $10,500,  in  notes; 
lie  got  out  of  Steele's  store  more  than  $500,  so  Steele  told  wit- 
ness; he  received  from  Gaston  between  $600  and  $700;  there 
is  still  remaining,  debts  of  the  company  contracted  by  Stebbins 
while  he  was  agent,  over  $7000 ;  witness  received  from  Stebbins, 
as  agent  of  the  company,  about  $4100,  in  the  notes  of  Wall  and 
Nevius;  Stebbins  never  pretended  to  witness,  at  the  time  the 
bond  and  mortgage  were  given,  that  there  was  anything  due  him 
from  the  company,  aud  that  there  had  been  any  settlement  of 
any  account  between  him  and  the  company. 

On  cross-examination,  he  says — In  January,  1842,  and  before, 
John  I.  Gaston  was  president  of  the  company ;  the  board 
of  managers,  at  their  meeting,  about  the  1st  of  January,  1842, 
directed  that  the  president  should  give  the  bond  and  mortgage  j 
tlie  amount  of  it,  he  thinks,  was  fixed  at  that  meeting,  but 
he  cannot  say  positively ;  the  board  of  managers,  on  the  day 
the  bond  and  mortgage  were  given,  adopted  a  seal  for  the  com- 


144  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

pany  ;  he  thinks  Joseph  A.  Gaston  was  present  at  the  meeting 
when  the  bond  and  mortgage  were  given ;  he  thinks  it  was 
about  April  Court,  or  at  a  tirn-3  that  Stebbins  stated  to  him  that 
Mr.  Blauvelt  was  at  Somerville  to  examine  the  records,  that 
Stebbins  wished  to  get  the  resolutins  passed  by  the  board  ;  he 
does  not  know  that  Blauvelt  was  ever  up  to  examine  the 
records,  but  only  what  Stebbins  told  him ;  the  resolutions 
required  by  Stebbins  were  passed  by  the  board;  Joseph  A. 
Gastou  was  secretary  of  the  board ;  thinks  it  was  within  two 
weeks  after  the  bond  and  mortgage  were  executed,  that  he  told 
Judge  Nevius  it  was  done,  and  stated  to  him  why  it  was  done; 
thinks  it  was  in  the  June  following,  that  he  told  General  Wall 
the  bond  and  mortgage  had  been  given ;  General  Wall  said 
very  little  about  it;  Judge  Nevius  was  a  good  deal  dissatisfied  ; 
General  Wall  said  they  had  got  enough,  already,  in  the  hands 
of  Stebbins;  Wall  and  Nevius  were  then  large  stockholders,  and 
had  paid  in,  between  them,  between  $10,000  and  $11,000  on 
their  stock ;  no  effort  was  made,  to  his  knowledge,  by  any  one 
of  the  company,  to  recover  back  the  bond  and  mortgage  from 
Stebbins;  we  never  had  an  official  meeting  of  the  board  after 
the  bond  and  mortgage  were  given,  till  after  we  found  he  had 
used  them  ;  he  had  used  them  a  long  time  before  any  of  us 
knew  about  it;  I  only  knew  the  debts  of  the  company  from 
acknowledgments  and  statements  made  at  the  meetings  of  the 
board,  and  by  the  statements  of  the  managers  and  the  presi- 
dent. 

On  re-examination. — After  they  had  found  out  that  Stebbins 
had  assigned  the  bond  and  mortgage  to  Van  Hook,  he,  Steb- 
bins, denied  to  witness  and  John  I.  Gaston  that  he  had  ever 
made  use  of  the  bond  and  mortgage,  and  said  he  could  make 
no  use  of  them  till  he  could  get  a  lease  from  the  water-power 
company  ;  witness  does  not  know  that  Wall  or  Nevius  was  ever 
informed  that  Stebbins  intended  to  use,  or  had  used  the  bond 
and  mortgage  for  any  other  purpose  than  what  it  was  intended 
for;  witness  was  present  at  a  meeting  when  Stebbins  applied 
for  a  lease  of  water,  when  Stebbins  blamed  General  Wall  for 
his  not  getting  the  lease;  Stebbins  said  he  could  not  raise  the 
money  on  the  bond  and  mortgage  without  the  lease;  General 
Wall  then  said  he  could  not  have  the  lease,  and  that  he  must 


SEPTEMBER  TERM,  1845.  145 

Van  Hook  v.  Souierville  Manufacturing  Co. 

return  the  bond  and  mortgage;  the  company  frequently  told 
Stebbins  that  he  was  largely  indebted  to  them,  and  if  he  had 
any  claims  he  must  present  them  ;  and  he  would  say  he  was 
ready  fora  settlement ;  that  his  books  were  in  New  York;  and 
when  in  New  York,  he  would  say  they  were  in  Somerville;  and 
we  never  could  nor  did  get  a  settlement  while  Stebbins  was  in 
the  board. 

John  I.  Gaston,  for  the  defendants. — He  was  president  of  the 
company;  what  Packer  has  testified  as  to  the  situation  of  the 
buildings  and  the  property  generally,  is  correct;  the  first  he 
knew  of  the  bond  and  mortgage,  was  on  the  evening  the  com- 
pany resolved  to  give  them  ;  there  had  been  some  talk  about  giv- 
ing them  some  time  before,  for  the  purpose  of  raising  money  for 
the  company;  then  he  found  they  had  all  agreed  on  giving 
the  bond  and  mortgage;  he  was  opposed  to  it  himself;  he  did 
not  wish  to  encumber  the  property  without  giving  the  stock- 
holders notice;  Stebbins  then  said  that  all  we  had  done  would 
be  lost  unless  we  raised  money  on  bond  and  mortgage;  and 
that  there  were  many  debts  that  were  pressing  and  must  be 
paid  ;  he  then  produced  a  memorandum  showing  that  the  com- 
pany owed  him  about  $10,000  for  services,  house  rent,  &c.,  and 
considerable  interest  on  it;  and,  therefore,  there  would  be  no 
danger  in  giving  him  the  bond  and  mortgage;  the  reason  he 
gave  why  a  bond  and  mortgage  should  be  given  to  him  was, 
that  he  could  not  negotiate  a  bond  and  mortgage  to  the  lender; 
he  said  he  would  be  compelled  to  give  a  premium  on  it;  but  if 
it  was  given  to  him,  he  could  assign  it  to  some  one  and  give 
some  further  security  and  make  it  an  individual  transaction  of- 
his  own  ;  he  said  it  would  enable  him  to  pay  the  pressing  debts 
of  the  company  and  complete  the  works;  that  was  the  pur- 
pose, entirely,  for  which  the  bond  and  mortgage  were  given; 
and  not  to  pay  any  debt  the  company  owed  him  ;  I  did  not,  in 
giving  the  bond  and  mortgage,  recognize  that  the  company 
owed  Stebbins  anything;  yet  at  the  same  time,  if  he  had  not 
made  some  show  that  the  company  owed  him,  witness  would 
not  have  consented  to  give  the  boud  and  mortgage  ;  as  it  ulti- 
mately turned  out,  I  believe,  the  company  did  not  owe  lum  one 
dollar;  in  the  statement  exhibited  by  Stebbins,  he  thinks  there 
was  no  credit  given  ;  the  account  was  nearly  all  for  salary ;  he 


146  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

knows  there  was  no  credit  given  for  the  notes  received  from 
General  Wall  or  Judge  Nevius ;  there  never  was  a  settlement 
with  Stebbins  and  the  company  ;  and  we  could  never  get  a 
statement  of  what  he  had  received  ;  he  thinks  Stebbins  hud 
received,  in  notes  of  Wall  and  Nevius,  $10,000;  the  indebt- 
edness of  the  company  at  the  time  the  bond  and  mortgage  were 
given  was  about  $6000;  he  does  not  know  what  Stebbins  had 
paid  out;  the  whole  of  the  expenditures  at  that  time  ought 
not  to  have  exceeded  $6000;  at  the  time  the  bond  and  mort- 
gage were  given,  Stebbius  said  the  object  of  the  mortgage  was 
to  raise  mouey  to  pay  the  pressing  debts  and  complete  the  works  ; 
there  never  was  one  dollar  raised  on  the  bond  and  mortgage 
that  came  into  the  hands  of  the  company ;  and  I  did  not,  until 
within  a  year  past,  know  that  it  had  been  assigned  away  by 
Stebbins;  the  letters  shown  him,  and  marked  Exhibits  A 
and  B,  are  in  the  handwriting  of  Stebbins,  and  were  received 
by  witness  from  Stebbius,  during  the  time  he  pretended  he  was 
negotiating  the  loan  ;  the  $1500  mentioned  in  the  letter  of 
January  17th,  1842,  is  a  prior  debt  against  the  company,  as 
security  for  liabilities  incurred  for  the  company ;  Mr.  Packer, 
whose  name  is  mentioned  in  the  letter  marked  B,  is  the  Wil- 
liam Packer  who  was  contractor  on  the  works;  Stebbins  said 
he  must  raise  the  money  to  complete  the  works,  for  that  he  had 
$30,000,  all  he  had  in  the  world,  in  the  company  ;  and  he 
•would  be  ruined  unless  he  got  the  works  completed ;  the  pro- 
perty mortgaged,  being  in  an  unfinished  state,  and  without  the 
use  of  the  water,  and  if  subject  to  the  mortgage  of  $9600,  was 
not  worth  anything  to  the  stockholders  ;  neither  would  it  pay 
the  mortgage ;  Stebbins  brought  Van  Hook  out  to  look  at  the 
property  some  time  during  the  spring  or  summer  of  1842;  Van 
Hook  stopped  at  witness'  door,  and  told  witness  he  had  come 
out  to  see  about  loaning  Stebbins  the  money  on  the  bond  and 
mortgage;  1  told  him  we  wanted  about  $10,000  to  set  the  prop- 
erty going  and  pay  the  debts,  and  that  Stebbins  said  that  sum 
would  do  it ;  that  I  considered  the  property  would  be  worth 
$20,000  when  in  operation;  I  told  him  the  amount  of  expenses 
we  had  been  at,  about  $180,000;  that  if  he  had  the  money  to 
spare,  he  could  not  put  it  out  more  safely;  that  we  were  anx- 
ious to  get  the  money  and  have  the  works  in  operation ;  Vau 


SEPTEMBER  TERM,  1845.  147 

Van  Hook  v.  Somerville  Manufacturing  Co. 

Hook  said  he  could  furnish  the  money  if  he  was  satisfied  with 
the  security,  but  that  he  did  not  wish  to  run  any  risk,  as  he 
had  already  lost  some  money  on  loans  made  for  other  persons ; 
he  made  several  inquiries  respecting  the  value  of  the  property ; 
that  is  all  that  passed  between  us  that  I  know ;  I  never  made 
the  least  intimation  to  Van  Hook,  or  any  other  person,  that  the 
money  was  to  be  raised  for  the  benefit  of  Stebbins,  but  always 
supposed  it  was  for  the  benefit  of  the  company  ;  Van  Hook  did 
not  inquire  as  to  the  means  of  the  company  for  completing  the 
works,  but  I  told  him  that  if  we  could  obtain  the  money  on 
the  bond  and  mortgage,  we  would  be  able  to  put  the  works  in 
operation,  and  that  then  the  property  would  be  valuable;  my 
impression  is,  that  the  resolutions  offered  in  evidence  were  pass- 
ed before  the  conversation  took  place  with  Van  Hook,  but  am 
not  positive ;  by  the  information  witness  received  from  Steb- 
bins, there  was  no  negotiation  of  the  bond  and  mortgage  at  the 
time  the  resolutions  were  passed;  I  gave  Stebbins  such,  a  cer- 
tificate as  he  asked  for  to  enable  him  to  effect  a  loan  ;  it  was 
given  him  for  the  same  purpose  the  bond  and  mortgage  were 
given  for — to  enable  Stebbins  to  make  the  loan ;  I  gave  the 
certificate  to  aid  him  in  making  the  loan,  and  that  the  bond  and 
mortgage  were  valid  ;  I  never  gave  Stebbins  a  certificate  that 
the  company  had  given  him  the  bond  and  mortgage  for  any 
debt  due  him  from  the  company. 

Cross-examined. — He  does  not  recollect  whether  he  was  pre- 
sent at  the  meeting  of  the  board  when  the  resolutions  were 
passed,  but  he  recollects  something  about  the  resolutions,  and 
probably  he  was  present  at  the  time  they  were  passed ;  he  pre- 
sumes the  original  minutes  are  in  the  hands  of  the  company  in 
New  York ;  Ibbotsou  got  them  of  his  son,  and  took  them  to 
New  York  ;  he  did  not  convey  the  idea  to  Van  Hook,  or  any 
other  person,  that  the  bond  and  mortgage  were  given  to  Steb- 
bius  for  a  debt  due  from  the  company  to  Stebbins ;  Van  Hook 
made  no  inquiry  about  its  being  for  a  debt  due  Stebbins ;  there 
was  no  conversation  on  that  subject. 

In  chief. — The  resolutions  were  to  aid  Stebbins  in  the  ne- 
gotiation in  raising  the  money  on  the  bond  and  mortgage 
for  the  use  of  the  company  ;  he  applied  to  witness  for  the 
resolutions,  and  said  he  wanted  them  to  assist  him  in  get- 


148  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

ting  the  money  on  the  bond  and  mortgage,  and  they  were 
passed  for  that  purpose,  and  if  any  certificate  was  given  by 
me  as  president  of  the  company,  it  was  given  for  the  same 
purpose  ;  he  does  not  know  that  Stebbins  ever  paid  any  money 
out  of  his  own  funds  for  the  use  of  the  company;  the  com- 
pany have  never  expended  anything  at  Somerville,  except  for 
building  and  some  castings;  the  expenditure  he  before  alluded 
to  is  $180,000  in  stock  ;  the  scrip  to  bedelivered  for  the  Pough- 
keepsie  machinery  and  patents,  depending  on  them  to  fulfill. 

Cross  examined. — Witness  is  not  a  stockholder,  and  has  no 
interest  in  this  suit;  Stebbins  was  employed  by  the  Somerville 
Manufacturing  Company  as  their  agent,  at  $3000  a  year 
salary  and  a  house;  thinks  it  was  three  years  from  the  time 
he  was  engaged  as  agent  till  he  was  dismissed  ;  but  he  does 
not  know  that  he  was  engaged  in  the  business  of  the  company 
more  than  a  third  of  the  time;  the  first  year  he  does  uot 
think  there  was  much  done;  there  never  was  any  agreement 
between  the  company  and  Stebbins  varying  the  first  bargain 
made ;  there  never  was  a  settlement  by  the  company  with 
Stebbins;  they  never  could  get  him  to  a  settlement,  or  to  make 
a  statement;  there  never  was  a  formal  account  rendered  by 
him  to  the  company  as  agent;  at  the  time  the  bond  and  mort- 
gage were  given,  Stebbins  presented  a  statement  on  a  small 
piece  of  paper,  showing  that  the  company  was  indebted  to  him 
between  $9000  and  $10,000  for  services;  there  was  a  minute 
made  in  the  books  of  the  company  of  the  bargain  of  the  com- 
pany with  Stebbins ;  Van  Renselaer  was  present  when  the 
statement  was  produced  by  Stebbins,  and  it  was  talked  about, 
but  he  does  not  recollect  that  Van  Renselaer  said  anything 
about  it ;  witness  did  not  take  the  statement  as  a  settlement, 
but  merely  to  show  that  the  company  were  in  no  danger  in 
giving  him  the  bond  and  mortgage ;  he  does  not  know  that 
Van  Renselaer  recognized  the  statement  as  a  just  claim  of  Steb- 
bins against  the  company. 

In  chief. — At  a  meeting  of  the  company  in  New  York,  the 
company  told  Stebbins  they  were  unwilling  to  pay  him  $3000 
a  year,  because  he  had  not  been  engaged  in  the  business  of  the 
company  the  whole  time  ;  Stebbins  said  he  had  been  engaged 
a  considerable  part  of  the  time  for  the  water  company,  and  he 


SEPTEMBER  TERM,  1845.  1 49 

Van  Hook  v.  Somerville  Manufacturing  Co. 

was  willing  that  whatever  that  company  paid  him,  might  come 
out  of  his  wages;  the  company  never  admitted  that  they  owed 
Stebbins  anything;  but  we  did  not  know  whether  we  owed  him, 
or  he  owed  us  ;  at  the  time  the  bond  and  mortgage  were  given, 
it  was  proposed  by  Stebbins,  and  agreed  to  by  the  company,  that 
it  should  be  given  to  him  to  raise  money  to  pay  the  debts  of  the 
company,  and  to  enable  them  to  complete  the  works,  and  for  no 
other  purpose,  and  not  for  any  debt  due  him  from  the  company, 
or  pretended  to  be  due. 

James  Taylor,  for  defendants. — The  assignment  of  the  bond 
and  mortgage  was  acknowledged  before  him  ;  he  does  not  know 
who  brought  it  to  him  ;  he  has  never  seen  Van  Hook,  to  his 
knowledge ;  Stebbins  appeared  before  him  and  made  the  acknowl- 
edgment; thinks  he  heard  Stebbins  say  that  the  object  of  giving 
the  bond  and  mortgage  was  to  raise  money  for  the  company 
to  complete  the  works ;  that  is  his  impression,  but  he  is  not 
certain  of  it. 

Edward  F.  Loom  is,  for  the  defendants. — He  served  a  subpoana 
on  Henry  L.  Stebbins  to  appear  at  this  place  this  day  ;  served 
it  last  evening,  about  half-past  four  o'clock,  and  paid  him  one 
dollar;  when  witness  handed  him  the  subpoena  he  said,  what 
is  this?  he  read  it,  and  said  he  did  not  know  what  it  was  ;  he 
said  he  did  not  know  anything  about  it — that  he  did  not  know 
Mr.  Van  Hook  ;  Henry  L.  Stebbins  is  the  reputed  son  of  Jared 
N.  Stebbins. 

Allan  Clark,  for  the  defendants. — I  now  reside  in  Somerville; 
in  1842  I  resided  in  New  York;  the  paper  marked  Exhibit  C 
on  the  part  of  the  defendants,  is  in  my  handwriting;  I  saw  ifc 
executed  by  all  the  parties  except  Air.  Gaston  ;  it  was  executed 
by  Stebbins  on  the  llth  of  September,  1842,  and  was  finally 
executed  by  all  the  parties  on  the  1st  of  October,  1842 ;  it  was 
to  take  effect  as  soon  as  a  majority  had  signed  it ;  the  paper 
marked  Exhibit  D  is  in  my  handwriting,  and  was  executed 
on  the  2d  of  September,  1842 ;  it  was  modified  in  part  on  the 
llth  of  September,  1842,  and  referred  to  in  the  agreement 
signed  that  day ;  the  paper  marked  Exhibit  E  is  in  my 
handwriting,  and  was  executed  in  part  on  the  llth  of  Sep- 
tember, 1842;  it  was  signed  by  Van  Renselaer,  Loornis, 
and  Ly  man,  and  Jared  N.  Stebbins  on  that  day ;  it  was 


150  CASES   IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

afterwards  signed  by  General  Wall,  not  in  my  presence,  but 
I  know  his  signature;  and  also  by  Lyman  for  Judge  Nevius  ; 
I  saw  the  authority  in  the  handwriting  of  Judge  Nevius  to 
Mr.  Lyman  for  him  to  sign  his  name  to  that  writing ;  the 
date  of  this  writing  was  altered  from  September  llth  to 
October  3d,  at  the  request  of  Stebbins;  he  stated  that  it  was 
for  the  purpose  of  securing  a  small  debt  of  the  manufacturing 
company  to  Mr.  Steele,  of  about  $5QO ;  that  he  had  promised 
Steele  there  should  be  no  prior  lien  to  his;  he  said  the  property 
was  clear  of  all  encumbrances  ;  I  have  heard  him  represent 
this  more  than  once ;  the  first  I  heard  of  the  negotiations 
which  resulted  in  the  above  agreement,  was  a  conversation 
between  Stebbins  and  Lyman;  Stebbins  represented  all  the 
debts  of  the  company  not  to  exceed  $3000;  he  never  claimed 
any  debt  that  the  company  owed  him  ;  I  have  seen  him  make 
a  list  of  the  debts;  he  always  represented  that  the  company 
were  unable  to  go  on  any  further,  for  the  want  of  money,  and 
that  was  the  reason  he  applied  to  Mr.  Lyman  to  make  the  ne- 
gotiation;  I  was  present  when  the  agreement  was  signed  by 
some  of  the  parties;  I  knew  the  property  which  Stebbins  said 
he  had  bought  of  Van  Hook  ;  I  had  a  conversation  with  Steb- 
bins in  April  last,  about  this  property  ;  I  have  known  the  prop- 
erty for  ten  or  fifteen  years  ;  it  is  leasehold  property,  and  the 
term  has  about  ten  years  to  run  ;  at  the  time  Stebbins  got  this 
property  it  was  worth  about  $4000;  Stebbins  has  always  claimed 
this  property  as  his  own. 

Cross-examined. — There  are  buildings  on  this  property,  of 
brick,  about  twelve  and  a  half  feet  front,  and  three  stories  high  ; 
I  think  there  are  five  separate  entrances  to  the  building  in  front; 
I  do  not  know  what  is  the  rent  of  the  property  ;  I  lived  in  the 
neighborhood  of  the  property  sixteen  or  eighteen  years ;  I  now 
own  property  in  the  same  neighborhood  ;  I  am  now  in  the 
employ  of  Lyman  &  Loomis,  who  are  partners  in  business. 

William  Thomson,  for  the  defendants. — I  saw  the  paper 
marked  Exhibit  E,  executed  by  John  I.  Gaston. 

A  deed  from  the  Somerville  Manufacturing  Company  to 
Loomis  &  Lyman,  dated  October  18th,  1842,  was  exhibited  ou 
the  part  of  the  defendants. 

The  master  states  that  it  was  admitted  by  the  parties  that 


SEPTEMBER  TERM,  1845.  151 

Van  Hook  v.  Somerville  Manufacturing  Co. 

the  assignment  of  the  bond  and  mortgage  by  Jared  N.  Stebbins 
to  the  complainant,  was  delivered  in  the  clerk's  office  of  Somer- 
set county,  on  the  1st  of  August,  1842,  by  said  Stebbins,  and 
recorded  after  the  mortgages  left  in  the  office  for  record,  on  the 
8th  and  9th  of  August,  1842,  and  delivered  to  Mr.  Blauvelt, 
the  complainant's  solicitor,  on  the  18th  of  May,  1843  ;  and  that 
it  was  agreed  by  the  parties  that  the  paper  marked  Exhibit  C 
on  the  part  of  the  complainant,  is  a  true  copy  of  the  resolutions 
passed  by  the  board  of  managers  of  the  Somerville  Manufactur- 
ing Company,  duly  certified  by  the  secretary. 

John  M.  Mann,  for  the  complainant. — He  is  acquainted  with 
Loo  mis  and  Lyman,  two  of  the  defendants  ;  is  acquainted  with 
the  property  of  the  Somerville  Manufacturing  Company  con- 
tained in  the  mortgage  in  controversy ;  some  time  prior  to  June 
25th,  1842 — the  precise  time  he  cannot  say — he  was  employed, 
on  behalf  of  Mr.  Van  Hook,  to  examine  into  the  title  of  the 
property  belonging  to  the  Somerville  Manufacturing  Company, 
at  Somerville,  included  in  said  mortgage,  with  the  understand- 
ing that  there  was  a  negotiation  going  on  between  Van  Hook 
and  Jared  N.  Stebbins  ;  he  made  the  examination,  and  gave 
a  certificate  to  that  effect ;  he  examined  the  book  of  minutes 
of  the  company,  as  it  was  represented  to  him  ;  he  did  not 
know  it  to  be  the  book  of  minutes  of  the  company,  any  more 
than  that  it  contained  the  proceedings  of  the  company  ;  he  does 
not  know  where  he  found  it ;  he  found  on  this  book  a  resolu- 
tion of  the  board  of  directors  of  the  company,  of  an  indebted- 
ness of  the  company  to  Jared  N.  Stebbins  of  $9638  ;  there 
was  also  in  said  book  a  resolution  authorizing  the  president  of 
the  company  to  execute  a  bond  and  mortgage  to  Jared  N.  Steb- 
bins for  $9600,  on  the  real  estate  of  the  company  ;  all  the  in- 
formation he  gathered  in  relation  to  this  property  he  gave 
either  to  Van  Hook,  or  to  his  counsel,  Mr.  Blauvelt;  he  had 
no  knowledge  of  the  bond  and  mortgage  given  to  Stebbins,  or 
anything  in  relation  to  it,  except  what  he  got  from  the  resolu- 
tion on  the  book  of  minutes  of  the  company  ;  lie  knows  the 
handwriting  of  John  I.  Gaston.  [Being  shown  a  paper  writing 
marked  Exhibit  A  on  the  part  of  the  complainant,  he  says] — 
The  name.  John  I.  Gaston,  subscribed  to  said  paper,  is  said  Gas- 
ton's  handwriting. 


152  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

Cross-examined. — He  thinks  the  property  of  the  Somerville 
Manufacturing  Company  would  be  worth  very  little  without  the 
water-power. 

Abner  Jones,  for  the  complainant. — He  resides  in  New  York, 
and  has  resided  there  thirteen  or  fourteen  years ;  he  has  been  a 
real  estate  broker  for  the  last  five  years,  and  is  now.  [Being 
shown  the  bond  and  mortgage  in  controversy,  he  says] — He  has 
seen  them  before;  the  first  time  he  saw  them  was  in  the 
spring  of  1842;  the  occasion  on  which  he  first  saw  them  was 
about  the  time  of  the  completion  of  the  arrangements  between 
Stebbins  and  Van  Hook ;  he  had  been  applied  to  prior  to  that 
time,  by  Stebbins,  to  negotiate  the  bond  and  mortgage  for  him  ; 
about  the  last  of  March  or  first  of  April,  1842,  he  was  applied 
to  by  Stebbins  to  negotiate  the  bond  and  mortgage ;  witness 
offered  it  for  dry  goods,  and  offered  it  to  other  persons  before  he 
offered  it  to  Van  Hook  ;  about  the  time  "last  mentioned,  he 
offered  the  said  bond  and  mortgage  to  Van  Hook  for  some 
houses  he  had  in  the  Third  avenue,  New  York ;  while  it  was 
under  consideration,  he  obtained  from  Van  Hook  another  offer, 
which  Van  Hook  preferred,  being  some  cash  and  New  York 
securities ;  in  the  fore  part  of  May  witness  went  and  showed 
Jared  N.  Stebbins  the  property  contained  in  Exhibit  I,  J.  M. 
Mann,  master,  which  resulted  in  the  purchase  of  the  bond  and 
mortgage  by  Van  Hook  ;  Stebbins  was  to  make  up  the  mort- 
gage to  $10,000,  and  make  it  equal  to  a  ten  per  cent,  mortgage; 
Van  Hook  was  to  give  him  for  it,  the  five  houses  and  lots  con- 
tained in  said  Exhibit  I,  and  the  leases,  and  give  him  also  the 
benefit  of  the  decree,  if  the  property  should  not  bring  as  much  as 
the  mortgage  Van  Hook  held  on  the  property  ;  the  rent  which 
had  been  kept  back  for  six  or  nine  months  in  the  hands  of  a 
receiver,  was  to  go  to  Stebbins ;  Van  Hook  at  this  time  held  a 
bond  and  mortgage  on  the  said  property,  witness  thinks,  of 
$10,000,  which  was  in  an  advanced  state  of  foreclosure,  or  had 
been  foreclosed,  he  does  not  know  which  ;  the  sale  of  the  pro- 
perty had  not  then  been  made ;  it  was  to  be  sold,  and  after  the 
sale  Stebbins  was  to  get  his  title  through  Van  Hook;  this 
trade  had  been  agreed  upon  some  weeks  before  the  sale  by  the 
master;  the  sale  was  partly  given  up  once  by  Van  Hook; 
Btebbins  desired  the  property  to  be  purchased  in  as  low  as  it 


SEPTEMBER  TERM,  1845.  153 

Van  Hook  v.  Somerville  Manufacturing  Co. 

could  be;  witness  took  a  message  from  Stebbins  to  Van  Hook, 
for  him,  Van  Hook,  to  buy  in  the  property  at  a  small  price; 
the  reason  why  Stebbins  wished  the  property  bought  in  at  a 
small  sum  was,  that  the  smaller  the  sum  for  which  it  sold,  the 
larger  would  be  the  amount  left  due  on  the  decree,  which  he, 
Stebbins,  would  be  enabled  to  enforce  against  Bowen,  the  de- 
fendant in  said  decree  ;  which  balance  belonged  to  Stebbins  by 
the  terms  of  the  bargain ;  this  whole  transaction  took  place 
in  the  city  of  New  York;  witness  was  first  applied  to  by  Steb- 
bins ;  Van  Hook  never  applied  to  witness  ;  Van  Hook  paid  one- 
half  of  the  commissions,  in  consequence  of  some  misunder- 
standing between  Stebbins  and  Van  Hook  as  to  the  terms  of 
the  bargain;  this  was  done  by  way  of  settling  the  difficulty; 
witness  looked  to  Stebbins  for  his  commissions  ;  did  not  think 
of  charging  Van  Hook,  until  Stebbins  and  he  agreed  that  he, 
Van  Hook,  should  pay  one-half;  Van  Hook  refused  to  part 
with  the  five  houses  and  lots  for  less  than  the  amount  of  his 
mortgage,  as  they  were  worth  that  to  him  ;  witness  and  Steb- 
bins went  together  to  see  the  property,  and  went  through  two 
or  three  of  the  houses;  this  was  before  the  bargain  was  made; 
at  this  time  Stebbins  was  willing,  and  proposed  to  witness  to 
give  his  bond  and  mortgage  for  the  said  property  and  decree ; 
previous  to  the  bargain  being  closed,  Stebbius  went  to  see  the 
property  once  or  twice,  as  he  informed  witness,  and  showed 
him  a  memorandum  of  the  income;  after  paying  ground  rent 
and  all  expenses,  the  property  rented  for  enough  to  make  it  a 
seven  per  cent,  matter  on  $10,000,  as  it  strikes  witness;  he 
does  not  speak  positively  ;  Stebbins  examined  about  the  rents 
particularly,  to  know  what  would  be  in  the  hands  of  the  re- 
ceiver; Van  Hook  repeatedly  said,  in  the  course  of  the  nego- 
tiation, that  he  would  not  take  less  than  the  amount  due  on 
his  mortgage;  witness  says  if  he  had  owned  the  property 
when  the  bargain  was  made  in  May,  1842,  he  would  not  have 
taken  less  than  $10,000  for  it;  since  this  property  has  been 
sold  by  Van  Hook,  it  has  been  mortgaged  for  $8000 ;  witness 
has  seen  the  mortgage ;  saw  it  this  morning  in  the  hands  of 
Edward  P.  Clark  ;  never  saw  the  mortgage  in  any  other  place 
than  in  the  city  of  New  York.  [Being  shown  a  paper  marked 
Exhibit  B  on  the  part  of  the  complainant,  he  says] — It  is  a 
VOL.  i  K 


154  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

true  copy  from  the  original,  which  he  could  not  get  out  of  the 
office;  they  refused  to  let  him  have  it;  witness  has  sold  and 
negotiated  for  the  sale  of  a  large  amount  of  real  estate  in  all 
parts  of  the  city  of  New  York ;  during  the  last  five  or  six  years 
lie  has  been  a  real  estate  broker  in  the  city  of  New  York  ;  he 
has  some  knowledge  of  the  value  of  real  estate  in  the  city  ; 
during  the  time  of  this  negotiation,  and  about  the  close  of  it,  he 
learned  from  Van  Hook  and  Stebbins  that  they  had  been  over  to 
Jersey,  at  Somerville,  to  look  at  the  property  on  which  the  mort- 
gage in  controversy  is;  they  said  they  had  seen  Gaston,  the 
president  of  the  company;  Van  Hook  did  not  see  the  property  ; 
had  not  time  ;  from  the  time  the  first  trade  of  the  Third  avenue 
property  was  talked  about,  Van  Hook  and  Stebbius  talked  of 
going  over  to  Somerville,  and  whether  they  did  go  before  the 
last  trade  was  introduced  or  shortly  after,  witness  is  not  able  to 
say  with  certainty,  but  feels  confident  it  was  before  the  20th  of 
May,  1842. 

Cross-examined. — The  property  in  the  deed  contained  in 
Exhibit  I,  was  sold  at  public  sale  ;  Henry  L.  Stebbins  had  noth- 
ing to  do  with  the  negotiation  with  Van  Hook ;  about  the  close 
of  the  negotiation,  Stebbins  said  the  property  was  to  be  made  to 
his  son,  Henry  L.  Stebbins. 

John  S.  Blauvelt,  for  the  complainant. — In  the  spring  of 
1842,  he  was  in  the  complainant's  office  in  the  city  of  New 
York ;  he  cannot  specify  the  exact  time,  but  thinks  it  was  the 
last  of  April  or  early  in  May;  Van  Hook  stated  to  witness  that 
Stebbins  had  offered  him  a  mortgage  upou  the  property  of  either 
the  Water  Power  Company  or  the  Somerville  Manufacturing 
Company,  and  wanted  witness  to  examine  the  title  and  ascer- 
tain the  value  of  the  property  ;  witness  told  him  he  had  better 
get  John  M.  Mann  to  do  it,  as  he  lived  some  distance  from 
Somerville ;  that  Mann  had  been  clerk  of  the  county,  knew  the 
property,  and  probably  knew  the  title,  and  he  could  get  more 
satisfactory  information  from  him  than  he,  witness,  could  give 
him ;  Van  Hook  thought  that  would  be  the  best  way ;  as  the 
conversation  closed,  he  remarked  to  Van  Hook  that  the  bond 
and  mortgage  being  made  by  a  corporation,  he  had  beet  ascer- 
tain, before  he  took  it,  if  it  had  been  properly  executed,  and 
he  had  better  also  get  a  recognition  of  the,  bond  and  mortgage 


SEPTEMBER  TERM,  1845.  155 

Van  Hook  v.  Somerville  Manufacturing  Co. 

by  the  company  as  a  good  and  valid  bond  and  mortgage,  and 
that  the  company  had  no  defence  to  make  against  the  bond  and 
mortgage,  either  in  law  or  equity,  or  something  to  that  effect; 
witness  does  not  recollect  that  he  held  any  communication  with 
Van  Hook  on  the  subject,  afterwards,  until  after  the  bond  and 
mortgage  had  been  assigned  to  him,  nor  had  witness  anything 
to  do  with  the  examination  of  the  title  or  value,  or  with  the 
negotiation,  having  referred  him  to  Mr.  Mann,  as  his  counsel,  to 
get  the  information  ;  witness  was  at  Somerset  Court — which  is 
held  on  the  third  Tuesday  in  June  in  each  year — at  the  term  of 
June,  1842,  on  the  first  day;  saw  Stebbins  there;  he  inquired 
of  witness  what  kind  of  a  resolution  of  the  company  Van  Hook 
wanted  in  relation  to  the  bond  and  mortgage,  so  that  he,  Van 
Hook,  would  take  it;  witness  referred  him  to  Mr.  Mann  ;  Steb- 
bins applied  again,  and  maybe  more  than  once,  and  finally  wit- 
ness told  him  what  kind  of  a  resolution  he  supposed  Vati  Hook 
wished  ;  witness  may  have  drawn  or  dictated  a  resolution  on  the 
subject,  but  his  memory  does  not  entirely  serve  him  ;  he  had 
some  conversation,  he  thinks,  but  is  not  certain,  with  Mr.  Mann 
on  the  subject  of  the  bond  and  mortgage ;  witness  did  not  then 
know  anything  about  the  bond  and  mortgage,  or  the  circum- 
stances under  which  it  was  given,  nor  did  he  hear  anything  of 
any  difficulty  about  the  said  bond  and  mortgage  until  several 
months  afterwards — thinks  about  the  middle  of  the  following 
winter;  when  witness  was  at  Somerville,  in  June  Term,  1842, 
as  above  stated,  he  knew  the  fact  that  Van  Hook  had  been  to 
Soraerville  to  see  and  inquire  about  the  mortgaged  property; 
that  he  had  seen  Gaston,  the  president  of  the  company,  and 
that  he  had  not  seen  the  property,  for  he  told  witness  so ;  when 
or  where,  witness  does  not  recollect;  it  is  possible  witness  may 
have  seen  him  at  Perth  Amboy,  in  the  latter  part  of  May,  iu 
that  year;  he  does  not  recollect  to  have  had  any  communication 
with  Van  Hook  about  the  bond  and  mortgage,  after  that  above 
stated  as  having  taken  place  in  his  office,  for  some  months  after- 
wards. 

Dudley  Selden,  for  the  complainant. — He  resides  in  the  city 
of  New  York,  and  has  resided  there  more  than  twenty  years, 
and  is  a  lawyer;  he  says  he  is  acquainted  with  the  New  York 
property  described  in  Exhibit  I,  and  has  known  it  since  1836 


156  CASES  IN   CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

or  1837,  particularly  ;  there  were  three  adjoining  lots,  of  which 
the  premises  in  said  exhibit  is  five-sixths,  each  lot  being  25  feet 
front,  by  a  little  over  100  feet  deep;  they  were  vacant,  and  held 
under  leases  from  Mr.  Rogers;  the  agent  of  the  owner  of  the 
leases  applied  to  witness  to  purchase  them  ;  witness  purchased 
his  interest  in  the  three  lots  under  said  leases,  at  the  rate  of 
$1000  per  lot;  the  fee  simple  of  the  lots,  at  that  time,  was 
worth  from  $3000  to  $3500  each,  free  from  all  encumbrance; 
after  having  purchased  these  three  lots,  witness  determined  to 
build  upon  them  six  houses,  of  twelve  and  a  half  feet  front,  and 
made  an  arrangement  with  the  builder,  whereby  he,  in  connec- 
tion with  Mr.  J.  Rogers,  should  build  two  of  the  houses  on  his 
own  account,  substantially  corresponding,  externally,  with  the 
four  witness  was  to  build  on  his  own  account,  witness  advanc- 
ing some  portion  of  the  money,  which  was  to  be  secured  by  a 
mortgage  on  their  respective  buildings;  under  the  arrange- 
ments, six  buildings  were  put  up,  occupying  the  entire  front  of 
the  three  lots;  the  cost  of  the  four  buildings  put  up  on  the  two 
lots  retained  by  him.  was  over  $8000;  he  thinks  the  contract 
price  was  either  $2000  apiece,  together  with  certain  additions 
not  covered  by  the  contract,  or  it  was  $2200  apiece,  with  cer- 
tain additions ;  he  took  a  mortgage  from  Col  burn  and  from 
Rogers,  for  advances  he  made  to  them  in  building  their  houses; 
the  amount  of  the  mortgages  he  does  not  recollect ;  they  were 
probably  about  two-thirds  of  the  cost  of  the  lot  and  buildings, 
perhaps  a  little  more;  the  titles  to  Colburn  and  Rogers'  lots 
were  made  to  them,  either  by  his  surrendering  the  lease  to 
them  and  they  taking  out  new  leasts,  or  by  his  assigning  to 
them  the  lease  for  one  of  the  lots  which  he  held  ;  the  said 
Rogers  who  became  interested  in  the  one-half  of  this  one  lot, 
is  wholly  unconnected  with  the  Rogers  who  is  the  original 
lessor  of  the  three  lots;  the  one  who  claimed  under  witness  was 
Rogers  the  architect;  about  a  year  after  witness  got  the  build- 
ing completed,  property  began  to  depreciate  in  New  York,  and 
gradually  declined  for  about  three  years;  the  buildings,  he 
thinks,  were  completed  in  1837  or  1838 ;  thinks  real  estate  in 
New  York  continued  depreciated  until  the  beginning  of  1842; 
he  thinks  he  rented  his  houses  for  from  $350  to  $375,  each 
house;  thinks  he  got,  the  first  year  for  some  of  these  houses 


SEPTEMBER  TERM,  1845.  157 

Van  Hook  v.  Somerville  Manufacturing  Co. 

$400  ;  shortly  after  the  buildings  were  completed  he  made  an 
arrangement  with  a  Mr.  Bowen,  then  in  Europe,  and  who  at 
that  time  had  certain  funds  in  the  hands  of  witness,  whereby 
the  purchasing  the  lots,  the  building,  the  arrangement  made 
with  Colburn  and  Rodgers,  the  letting  of  the  houses,  &c.,  were 
all  deemed  to  have  been  made  by  the  said  Bowen  ;  his  impres- 
sion is,  he  originally  intended  the  said  property  for  Bowen,  and 
wrote  to  him  on  the  subject;  witness  foreclosed  the  Colburn 
mortgage  for  non-payment,  and  became  the  purchaser  under 
the  foreclosure,  for  the  benefit  of  Bowen  ;  Colburn  had  become 
embarrassed,  and  left  the  city  ;  this  was  about  a  year  or  eighteen 
months  after  the  buildings  were  completed;  the  Colburn  house 
and  the  four  houses  built  by  witness  are  included  in  Exhibit  I; 
before  witness  transferred  the  leases  under  direction  of  Bowen, 
witness,  at  his  request,  executed  a  mortgage  upon  the  premises, 
collateral  to  Mr.  Boweu's  bond,  which  witness  believes  was  to 
Mr.  Van  Hook  ;  witness  thinks  it  was  conditioned  for  $10,000. 
[Being  asked  what  was  the  value  of  the  premises  in  1840,  he 
says] — He  should  think  that,  in  May,  1840,  such  buildings  as 
were  put  up  on  these  premises  could  have  been  constructed  for 
$1750  apiece ;  and  had  the  leases  for  the  vacant  lots  been  offered 
to  witness  at  that  time,  he  would  not  have  been  willing  to  have 
given  more  than  $500  for  the  leasehold  interest  in  each  lot  of 
twenty-five  feet  front;  he  thinks  the  entire  property  would  have 
sold  for  more  in  1842  than  in  1840  ;  he  received  the  rents  for 
several  years  after  the  buildings  were  put  up,  and  up  to  about 
the  time  of  the  sale  under  the  foreclosure  of  the  mortgage  that 
was  given  to  Van  Hook,  acting  therein  as  the  agent  of  Bowen  ; 
the  rents  o-f  the  buildiugs  full  off  considerably,  and  varied  from 
$225  to  $275  or  $300  for  each  of  the  five  houses ;  there  were 
more  houses  in  New  York  during  the  depression  of  business 
than  there  were  tenants  who  usually  occupied  such  houses,  to 
occupy  them  ;  some  of  these  houses  were  occupied  by  two  ten- 
ants ;  the  rents,  during  the  depression,  were  not  always  collected 
in  full ;  perhaps,  if  witness  pressed  hard,  he  might  have  got 
them. 

William  Packer,  for  the  defendants. — I  was  present  at  the 
time  a  certain  resolution  of  the  board  of  directors  of  the  com- 
pany was  passed,  dismissing  Stebbins  from  their  employ,  and 


158  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

speaking  of  the  mortgage  in  this  suit,  which  resolution  was 
passed  in  the  middle  of  October,  1842  ;  which  resolution  I  saw 
last  Monday  night,  and  to  which  I  will  put  my  name  when  re- 
quested ;  the  resolution  is  in  the  handwriting  of  John  I.  Gas- 
ton,  who  was  president  of  the  board,  and  was  certified  by  him  ; 
Ibbotson,  Gaston  and  myself,  and,  I  think,  Van  Renselaer,  were 
present  at  the  meeting  when  the  resolution  was  passed  ;  Steb- 
bins  was  not  present,  but  had  notice. 

Cross-examined. — I  am  well  acquainted  with  the  hand- 
writing of  John  I.  Gaston  ;  the  paper  marked  Exhibit  No.  1 
on  the  part  of  the  complainant,  now  shown  to  me,  is  in  his 
handwriting. 

It  was  agreed  by  the  solicitors  of  the  parties,  that  the  book 
of  minutes  of  the  board  of  directors  be  used  as  evidence  on  the 
hearing  of  the  cause  ;  and  that  if  it  be  furnished  for  that  pur- 
pose, it  is  to  be  used  for  that  purpose  and  no  other,  and  is  to  be 
returned  to  the  person  furnishing  it,  after  being  used  for  the 
purposes  of  this  cause. 

Robert  Van  Renselaer,  for  the  complainant. — He  was  a  di- 
rector of  the  company  in  1841  and  1842 ;  Jared  N.  Stebbins 
was  also  a  director,  and  managing  agent  of  the  company,  at  a 
salary  of  $3000  a  year ;  deponent  was  present  at  a  meeting 
of  the  board  when  the  account  marked  A  on  the  part  of  the 
complainant,  was  presented  and  passed  upon  by  the  board;  the 
signature  to  said  account  is  that  of  John  I.  Gaston,  president  of 
the  board  ;  at  a  meeting  of  said  board  he  has  no  recollection 
that  an  order  was  made  directing  a  mortgage  to  be  given  to 
Stebbins,  but  knows  that  a  mortgage  was  given,  sanctioned  by 
the  board,  but  whether  at  that  meeting  or  not  deponent  does 
not  know;  he  remembers  being  present  at  a  meeting  of  the 
directors  when  a  discussion  took  place  as  to  the  time  when  the 
mortgage  should  become  payable,  Stebbius  wishing  it  to  be  at 
a  short  date,  and  the  directors  at  a  longer  one ;  the  time  was 
fixed  upon,  but  deponent  does  not  remember  what  that  time 
was. 

Cross-examined. — At  the  time  said  mortgage  was  proposed  to 
be  given,  the  company  was  struggling  with  pecuniary  difficul- 
ties which  seemed  to  be  insurmountable  ;  the  works  of  the  com- 
pany were  suspended  at  that  time  for  the  want  of  funds ;  the 


SEPTEMBER  TERM,  1845.  159 

Van  Hook  v.  Soraerville  Manufacturing  Co. 

manufacturing  company  had  just  commenced  its  operations  ; 
deponent  is  not  aware  of  any  settlement  having  been  made 
between  Stebbins  and  the  company,  excepting  so  far  as  refers 
to  the  account  marked  A  ;  Stebbins  received  a  large  amount  of 
notes  and  obligations  and  moneys  for  account  of  the  company  ; 
he  knows  that  Stebbins  received  $4000  from  the  water-power 
company,  to  be  applied  to  the  use  of  the  manufacturing  com- 
pany, as  .appears  by  the  settlement  of  tlve  water-power  com- 
pany at  Bunker's;  the  question  was  often  discussed  by  the 
company  as  to  the  mode  of  raising  money,  and  as  to  whether 
any  money  could  be  raised  by  a  loan  on  the  company  ;  Gaston 
was  of  opinion  that  any  amount  could  be  raised  ;  deponent  was 
of  opinion  it  could  not;  the  company  was  indebted,  at  the 
time,  to  several  persons,  who  were  pressing  for  their  debts; 
when  the  mortgage  was  given  to  Stebbins,  he  gave  the  assurance 
that  'he  could  raise  a  sufficient  sum  to  relieve  the  company 
from  its  embarrassments,  and  go  on  with  tlte  works  and  com- 
plete the  manufacturing  establishment;  deponent  consented  to 
the  mortgage,  to  secure  the  indebtedness  of  tlve  company  to 
Stebbins,  but  would  not  have  consented,  had  it  not  been  for 
the  assurance  of  Stebbitis  that  the  proceeds  would  have  been 
applied  for  the  payment  of  the  debts  and  prosecution  of  the 
works  of  the  company  ;  he  was  present  when  the  negotiation 
was  going  on  between  the  company  and  Loomis  and  Lyman, 
for  the  property  covered  by  the  mortgage,  but  cannot  remember 
the  month;  Stebbins  always  represented  to  deponent  that  the 
mortgage  was  under  his  control ;  deponent  never  knew  that 
Stebbins'  property  in  the  mortgage  had  been  absolutely  trans- 
ferred, until  tl»e  present  summer;  deponent  derived  that  im- 
presMon  from  the  assurances  of  Stebbins,  that  he  had  the  control 
of  the  mortgage  ;  deponent  knows  nothing  of  the  resolutions  of 
the  board  or  certificates  of  the  president,  in  relation  to  the  mort- 
gage, at  the  time  of  the  transfer  to  Van  Hook,  or  of  the  ma- 
chinery by  which  said  resolutions  and  certificates  were  obtained, 
which  resulted  in  the  negotiation  of  the  mortgage;  deponent 
not  having  been  present  at  any  of  the  meetings  of  the  board  wheu 
the  resolutions  were  passed  and  the  certificates  given. 

In  chief. — A  prior  mortgage  was  given  to  the  Slate  Bank  at 
Elizabeth,  to  secure  to  them  the  indebtedness  of  the  individual 


160  CASES  IN  CHANCERY. 

Van  Hook  v.  Soraerville  Manufacturing  Co. 

directors;  and  deponent  only  consented  to  the  Stebbins  mort- 
gage on  condition  that  said  mortgage  should  be  given  to  said 
bank  to  claim  priority  to  the  Stebbins  mortgage. 

The  following  is  the  writing  before  referred  to,  marked  Ex- 
hibit C  on  the  part  of  the  complainant: 

At  a  meeting  held  June  28th,  1842,  the  following  preamble 
and  resolution  were  passed : 

"Whereas  a  certain  bond  and  mortgage  given  by  the  Somer- 
ville  Manufacturing  Company  to  Jared  N.  Stebbins,  for  the  sum 
of  $9600,  bearing  date  the  tenth  day  of  January,  184:4,  has  been 
this  day  submitted  to  the  inspection  of  this  board,  and  the  same 
having  been  considered  and  examined,  it  ia 

"  Resolved,  That  the  said  bond  and  mortgage  is  a  legal  and 
subsisting  liability  of  the  said  company,  and  that  they  have  no 
defence  to  make  to  the  same,  either  in  law  or  equity. 

"  June  28th,  1842." 

I  certify  the  above  resolution  to  be  a  true  copy  from  the  min- 
utes of  said  company.  J.  A.  GASTON,  Secretary. 

Exhibit  A,  L.  D.  Hardenburgh,  master,  on  the  part  of  the 
complainant,  is  as  foll-ows  : 

Somerville  Manufacturing  Company, 

To  J.  N.  STEBBINS,        DR. 

1840.  Feb.  1.  To  am't  balance  due,  per  voucher $4517  93 

1841.  "      1.       "         interest  one  year 27175 

Rent  from  1st  Feb.  to  1st  May,  1840..       87  50 

Half  mouth  rent  to  15th  June 43  74 

Rent  to  1st  April,  from  15th  June 200  00 

1841.  Feb.  1.  One  year's  salary 3000  00 

Interest  one  year 487  25 

$8608  17 

1840.  By  note  of  Gen.  Wall  and  Judge  Nevius,  $1000 

Three  notes,  $500,  $278,  $222 1000 

Interest  one  year 120  2120  00 

$6488  17 
DR.  To  one  year's  salary 3000  00 

$9488  17 

1841.  Jan.  1.  Rent 150  00 

$9638  17 


SEPTEMBER  TERM,  1845.  161 

Van  Hook  v.  Somerville  Manufacturing  Co. 

The  board  of  directors  having  examined  the  above  account, 
do  pass  the  same,  and  acknowledge  a  balance  due  J.  N.  Stebbins 
of  §9628.17; 

Signed  by  order  of  the  board, 

J.  I.  GASTON,  President. 

A  paper  marked  B.,  L.  D.  Hardenbergh,  master,  on  the  part 
of  the  complainant,  is  exhibited  as  a  copy  of  a  mortgage  men- 
tioned in  the  testimony  of  Abner  Jones,  as  given  by  Henry  L. 
Stebbins  to  John  B.  Morgan,  dated  August  23d,  1842,  for 
$8000,  on  the  leasehold  property  in  New  York. 

Exhibit  I,  G.  A.  Vroom,  master,  on  the  part  of  complainant, 
is  as  follows : 

I  do  hereby  certify,  that  a  bond  and  mortgage  for  $9600,  was 
given  and  executed  by  me  to  Jared  N.  Stebbins,  as  president  of 
the  Somerville  Manufacturing  Company,  by  order  of  the  board 
of  directors,  as  said  amount  was  due  said  Stebbins,  as  agent  of 
the  company,  and  1  know  of  nothing  that  could  be  brought 
against  said  claim  in  abatement  or  in  any  way  destroy  its  va- 
lidity. JNO.  I.  GASTON,  President. 

June  28th,  1842. 

Exhibit  A  on  the  part  of  the  defendants,  is  a  letter  from  J. 
N.  Stebbins  to  J.  I.  Gaston,  dated  January  17th,  1842,  as  fol- 
lows : 

Dear  Sir:  I  returned  from  New  York  Saturday  evening,  ex- 
pecting to  have  gone  back  in  the  nine  o'clock  train  this  morn- 
ing; but  an  attack  of  a  violent  pain  in  my  head,  with  sickness 
at  the  stomach,  has  prevented.  Should  I  be  able,  I  intend  to 
go  in  the  morning.  I  fear  I  shall  not  be  able  to  negotiate  my 
mortgage  until  after  the  next  meeting  of  the  water  company 
board,  which  will  probably  be  on  the  1st  of  February.  I  have 
found  a  person  who  has  $10,000  to  loan,  at  seven  per  cent.,  and 
will  let  me  have  it  on  the  mortgage,  provided  the  property  on 
which  it  is  a  lien  is  worth  $20,000  ;  but  he  objects  until  I  get 
some  certainty  for  water  without  any  question  ;  he  does  not 
like  any  change  for  a  law-suit.  It  must  be  a  first  mortgage. 
This  can  be  got  along  with,  either  by  paying  up  the  $1500,  or 
keeping  it  back,  as  we  shall  hereafter  agree  upon. 


162  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

Now  it  is  not  possible  for  me  to  get. along  without  money, 
and  I  am  trying  to  negotiate  some  of  my  stock  to  raise  the 
wind.  I  have  sent  up  to  your  son  one  of  my  certificates  of 
fifty-six  shares,  and  he  has  sent  me  the  three  scrips  here  inclos- 
ed, for  your  signature ;  this  makes  thirty-eight  shares,  including 
the  fifteen  I  had  before,  and  there  is  now  eighteen  more  due  me 
upon  the  fifty-six,  when  I  come  to  settle.  I  would  thank  you 
to  add  your  signature  to  the  three  scrips,  and  send  them  to  me. 
I  should  like  to  see  you  before  I  go  to  New  York,  if  you  are 
coming  down  town. 

Respectfully  and  truly  yours, 

Monday,  January  17th,  1842.  J.  N.  STEBBIJSTS. 

P.  S.  I  cannot  pay  the  five  dollars  till  I  return.  I  heard  of 
your  being  in  town,  and  sent  for  you  this  morning,  but  could 
not  find  you. 

Exhibit  B  on  the  part  of  the  defendants,  is  a  letter  from  J. 
N.  Stebbins  to  John  I.  Gaston,  dated  New  York,  March  29th, 
1842,  as  follows : 

Dear  Sir  :  I  find  obstacles  in  the  way  of  negotiations.  I  want 
a  certificate  from  you  as  president,  that  the  bond  and  mortgage 
is  a  valid  one,  given  me  for  the  amount  due  me.  The  best  way 
is,  to  copy  the  resolution  on  the  books,  provided  there  is  nothing 
else  in  said  resolution.  I  also  want  a  certificate  from  the  clerk 
that  the  title  is  good  and  free  from  encumbrance.  Now  you 
know  perfectly  what  I  need  ;  will  you  get  it  for  me  and  forward 
it  to  the  care  of  C.  Wykoff,  Merchants'  Hotel? 

I  want  the  wall  put  up  and  the  shingles  put  on  the  foundry, 
and  I  have  written  Mr.  Packer  to  do  it  now.  I  wish  you  would 
try  to  aid  him  in  getting  it  done,  and  I  will  pay  for  the  shin- 
gles, &c.,  just  as  soon  as  I  get  the  money  upon  the  mortgage, 
which  I  can  do  as  soon  as  I  can  satisfy  that  all  is  right,  and 
the  property  worth  double  the  money  ;  and  I  think  they  will 
send  some  person  over  to  look,  and  I  want  it  all  right  when 
they  get  there. 

Yours,  truly,  J.  N.  STEBBINS. 

New  York,  March  29th,  1845. 

Exhibit  C  on  the  part  of  the  defendants,  is  an  article  of 
agreement  between  J.  N.  Stebbius,  Robert  Van  Rc-nselaer,  "VVil- 


SEPTEMBER  TERM,  1845.  163 

Van  Hook  v.  Somerville  Manufacturing  Co. 

Ham  Packer  and  John  I.  Gaston,  managers  and  directors  of  the 
company,  and  Luther  Loomis  and  Samuel  P.  Lyman,  witness- 
ing, that  the  parties  of  the  first  part,  in  consideration  of  $3000, 
the  receipt  whereof  is  acknowledged  in  behalf  of  the  said  com- 
pany, have  sold,  assigned,  transferred  and  delivered,  and  do 
thereby  sell,  &c.,  all  and  singular  the  letters  patent,  &c.,-  more 
particularly  described  in  a  deed  to  the  Somerville  Manufacturing 
Company,  a  copy  whereof  is  hereunto  annexed.  And  do,  for 
the  like  consideration,  sell,  assign,  transfer  and  deliver  to  the 
said  parties  of  the  second  part,  all  the  right,  title  and  interest 
of  the  said  company,  and  of  the  parties  of  the  first  part,  of  the 
property  and  effects  of  the  said  company,  described  in  said  deed, 
consisting  of  machinery  for  the  manufacture  of  screws,  stock 
of  materials,  tools,  chattels  and  effects,  of  whatever  name  or 
nature,  belonging  to  the  said  company,  free  and  clear  from  all 
encumbrance.  This  article  is  signed  and  sealed  by  Van  Ren- 
selaer,  Stebbius,  Packer  and  J.  I.  Gastou. 

Exhibit  E  on  the  part  of  the  defendants  is  a  memorandum 
of  an  agreement,  dated  October  3d,  1842,  signed  by  Loomis 
and  Lymau,  Van  Renselaer,  J.  N.  Stebbins,  Wall  and  Nevius, 
reciting  that  the  affairs  of  the  company  had  long  been  so  em- 
barrassed that  the  property  of  the  company  could  not  be  made 
productive,  and  must  be  sold  to  meet  the  liabilities  of  the  com- 
pany, and  that  the  parties  to  the  memorandum  are  holders  of  a 
large  amount  of  the  stock  of  the  company,  and  had  already 
expended  large  sums  to  make  the  property  productive,  and  that 
it  had  become  necessary  that  further  sums  be  expended  to  save 
what  had  been  laid  out  from  total  loss,  and  that  it  was  the  in- 
tention of  the  parties  to  the  memorandum,  to  afford  an  oppor- 
tunity to  other  parties  who  claim  to  have  an  equitable  interest 
in  the  property,  to  make  advances,  pro  raid,  which  shall  be 
equal  to  the  expenditures  made  by  the  parties  named  in  the 
memorandum,  and  share  with  them  in  the  benefits  or  disad- 
vantages to  accrue  from  what  has  been  undertaken  by  the  said 
parties ;  and  providing,  1st,  That  at  any  sale  of  the  property 
and  effects  of  the  company  which  may  take  place  under  any 
execution  or  decree,  or  at  private  sale  by  the  managers  of  the 
company,  the  property  shall  be  bought  by  Loomis  and  Lyman, 


164  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

for  the  parties  who  shall  subscribe  the  memorandum,  at  the 
lowest  price  at  which  it  is  possible  to  purchase  the  same;  pro- 
vided the  price  of  the  whole  shall  not  exceed  the  sum  which 
Loomis  and  Lyman  may  be  willing  to  pay  for  the  same;  which 
property,  when  purchased,  shall  be  held  by  them  for  the  benefit 
of  the  said  Loomis  and  Lyman,  G.  D.  Wall,  J.  S.  Nevius, 
Henry  Ibbotson,  Jared  N.  Stebbins  and  Robert  Van  Renselaer, 
in  case  they  become  parties  to  the  memorandum,  in  the  follow- 
ing proportions  :  Loomis  and  Lyman  shall  have  six-twelfths, 
and  Wall,  Nevius,  Ibbotson,  Stebbins  and  Van  Renselaer  six- 
twelfths  ;  and  each  one  shall  pay,  pro  raid,  for  the  purchase  of 
the  said  property,  according  to  his  interest  in  the  same,  to  be 
thereafter  declared. 

2d.  Immediately  after  the  execution  of  the  memorandum,  an 
accurate  inventory  and  valuation  of  all  the  effects  of  the  com- 
pany shall  be  made. 

3d.  As  soon  as  the  property  and  effects  of  the  company  can 
be  obtained,  and  title  thereto  perfected,  for  the  benefit  of  the 
parties  named  therein,  a  lease  for  all  the  water-power  required 
for  the  use  of  the  said  purchasers,  is  to  be  obtained  from  the 
Somerville  Water  Power  Company,  upon  the  usual  terms)  at 
the  rate  of  $4  per  annum  for  each  square  inch. 

4th.  The  title  to  the  said  property  under  the  sale  herein  con- 
templated, shall  be  acquired  as  soon  as  the  same  can  be  done, 
consistent  with  the  interests  of  the  said  parties,  and  without 
doing  violence  to  the  rights  of  others. 

5th.  Simultaneously  with  the  steps  herein  agreed  to  be  taken, 
it  is  understood  that  steps  shall  be  taken  to  clean  up  and  put  in 
order  all  the  machinery  and  effects  of  the  company,  and  to  pre- 
pare the  same  for  use  as  soon  as  the  circumstances  will  permit. 

6th.  It  is  the  understanding  of  the  parties,  that  as  soon  as  the 
said  purchases  are  made  and  the  value  of  the  same  ascertained, 
articles  of  agreement  more  full  and  defining  the  rights  of  the 
parties  more  particularly,  are  to  be  made  and  entered  into  be- 
tween the  parties  ;  but  until  then  this  memorandum  is  to  be  bind- 
ing. (Signed,) 

LOOMIS  &  LYMAN,  'J.  N.  STEBBINS, 

ROBT.  VAN  RENSELAER,  GARRET  D.  WALL, 

JAMES  S.  NEVJUS,  by  S.  P.  Lyman  for  him. 


SEPTEMBER  TERM,  1845.  165 

Van  Hook  v.  Somerville  Manufacturing  Co. 

Exhibit  K  on  the  part  of  tke  defendants,  is  a  deed,  dated 
October  18th,  J842,  from  the  company  to  Luther  Loomis  and 
Samuel  P.  Lyraan,  therein  stated  to  have  been  made  by  virtue 
of  a  resolution  of  the  board,  conveying,  for  $3000,  therein  ac- 
knowledged to  have  been  received,  the  real  estate  of  the  com- 
pany, (being  the  same  property  described  in  the  mortgage  as- 
signed to  the  complainant,)  "subject  to  two  certain  liens  by 
judgments  and  executions  against  the  company,  to  wit,  one  in 
favor  of  Joshua  Doughty,  and  one  in  favor  of  the  president, 
directors  and  company  of  the  State  Bank  at  Elizabeth."  This 
deed  contains  covenants  by  the  company,  that  the  property  is 
not  encumbered  by  any  encumbrance  whatever,  except  a"s  before 
mentioned,  and  that  the  company  will  warrant  and  defend  the 
premises  to  the  said  Loomis  and  Lyman,  freed  and  discharged 
from  all  encumbrances.  This  deed  is  signed  by  the  president, 
and  sealed,  and  is  acknowledged  by  him  before  George  H. 
Brown,  master  in  chancery,  to  have  been  signed,  sealed  and  de- 
livered by  him,  in  the  name  of,  and  as  the  voluntary  act  and 
deed  of,  the  company. 

By  an  exemplification  of  the  proceedings  in  the  Court  of  Chan- 
cery of  New  York,  exhibited  on  the  part  of  the  complainant, 
it  appears  that  the  bond  and  mortgage  from  Bowen  to  Van 
Hook,  on  the  property  in  New  York,  spoken  of  by  the  witness 
Selden,  were  dated  May  20th,  1840,  and  conditioned  for  the 
payment  of  $10,000,  in  one  year,  with  interest  at  seven  per 
cent.  This  mortgage  recited  that  George  P.  Rogers  had,  by  a 
lease  dated  October  14th,  1837,  demised  to  Dudley  Selden  all 
that  lot  of  laud,  &c.,  to  hold  from  May  1st,  1837,  for  the  term 
of  seventeen  years,  at  the  yearly  rent  of  $31.50;  that  Selden, 
with  the  consent  of  George  P.  Rogers,  had  assigned  the  lease 
to  Col  burn  ;  that  to  secure  part  of  the  consideration  of  the  as- 
signment, Colburn  had  executed  a  mortgage  to  Selden ;  that 
afterwards,  on  the  27th  of  November,  1839,  the  interest  of  Col- 
burn  in  the  lease  had  been  sold  by  a  master  in  chancery  to  the 
said  Bowen,  by  deed  dated  April  6th,  1840;  that  Bowen  mort- 
gaged to  Van  Hook  the  said  unexpired  term,  and  the  lease  and 
all  the  advantages  of  renewals  and  buildings  and  improvements. 
The  said  recited  mortgage  was  only  of  Colburn's  interest  in  one 


1G6  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

of  the  lots.  There  was  another  mortgage  of  the  leasehold  in- 
terest in  two  of  the  lots,  reciting  a  lease  dated  April  26th,  1833, 
for  twenty-one  years,  yielding  for  each  of  the  lots  the  yearly 
sum  of  $63.  Dudley  Selden  mortgaged  the  leasehold  interest 
in  said  two  lots  to  Van  Hook.  The  property  is  in  Thirteenth 
street,  Fifteenth  avenue.  The  bond  and  the  said  two  mort- 
gages were  to  secure  $10.000.  The  bill  filed  in  that  case  states 

O      O  p  ' 

that  Jacob  Acker  has  or  claims  some  interest  in  or  lien  upon  the 
said  premises  prior  to  the  said  mortgage  of  Van  Hook,  the  com- 
plainant in  that  cause,  and  prays,  among  other  things,  that 
after  satisfying  the  prior  liens  on  said  premises,  if  any,  the  com- 
plainant may  be  paid  out  of  the  residue  of  the  proceeds. 

The  answer  in  that  case  sets  up  usury,  and  states,  among 
other  things,  an  assignment  by  Bo  wen  in  trust  for  the  benefit 
of  his  creditors,  dated  June  1st,  1841. 

On  the  14th  of  December,  1841,  an  order  for  proofs  was 
made  in  that  case.  The  testimony  was  closed  February  21st, 
1842.  On  the  8th  of  April,  1842,  that  cause  was  brought  to 
hearing  on  the  pleadings  and  proofs,  and  it  was  referred  to  a 
master  to  compute  the  amount  due  Van  Hook,  the  complainant 
in  that  cause.  A  final  decree  was  made  on  the  9th  May,  1842. 
On  the  8th  of  September,  1842,  the  master's  report  of  sale  was 
confirmed,  unless  cause  to  the  contrary  should  be  shown  iu 
eight  days. 

A  paper  writing,  purporting  to  be  a  copy  of  a  mortgage  given 
by  Henry  L.  Stebbins  to  John  B.  Morgan,  dated  August  23d, 
1842,  was  exhibited  and  marked  Exhibit  B  on  the  part  of  the 
complainant. 

Copies  of  three  several  deeds  from  the  complainant  to  Henry 
L.  Stebbins,  for  the  New  York  property,  were  exhibited  ami 
marked  Exhibits  F,  G  and  H  on  the  part  of  the  com- 
plainant. 

A  copy  of  a  deed  from  William  Mitchell,  master  in  chancery 
of  New  York,  to  the  complainant,  was  exhibited  and  marked 
Exhibit  I. 

The  cause  came  on  to  be  heard  on  the  pleadings  and  proofs, 
the  terra  of  June,  A.  D.  1845. 


SEPTEMBER  TERM.  1845.  167 


Van  Hook  v.  Somerville  Manufacturing  Co. 

BlauvcU  and  P.  D.  Vrooni,  for  the  complainant.  They  cited 
2  Ball&  Beatty  319;  1  Ib.  151,  340;  Ambler  436;  5  Wheat. 
420;  Angdl  &  Ames  on  Corp.  73,  74,  158,  159,  160,  378;  2 
Kent's  Com.  293. 

S.  P.  Lyman  and  G.  D.  Wall,  for  the  defendants.  They 
cited.  Angdl  &  Ames  on  Corp.  151,  190,  242,  247,  390,  4U6  ; 
2  Kent's  Com.  298,  463,  468;  4  Peters  152;  4  Wheat.  636;  7 
Serg.  &  Rawle  530;  2  Wendell  308;  7  76.  31;  6  Hal  116, 
119. 

THE  CHANCELLOR.  The  first  question  I  shall  consider  is, 
whether  the  bond  and  mortgage  are  the  acts  of  the  company. 
Were  they  so  executed  as  to  bind  the  company? 

The  third  section  of  the  act  of  incorporation  provides  that 
the  stock,  property,  and  concerns  of  the  company  shall  be  man- 
aged and  conducted  by  five  directors,  being  stockholders,  one 
of  whom  shall  be  president,  and  that  the  president  and  direct- 
ors may  make  and  ordain  such  by-laws  and  regulations  for  the 
government  of  the  corporation,  and  for  the  management  of  the 
stock,  property,  effects,  and  concerns  of  the  company,  as  may 
by  them  be  deemed  necessary  and  convenient,  and  that  the 
president  and  directors,  or  a  majority  of  them,  shall  and  may 
appoint  such  officers,  superintendents,  and  agents  as  they  may 
think  proper,  and  may  remove  the  same  at  their  pleasure. 

The  fourth  section  provides  that  the  said  president  and  direct- 
ors, or  a  majority  of  them,  shall  have  power  to  call  in  stock, 
from  time  to  time,  in  such  installments  as  they  shall  see  fit  to 
prescribe;  and,  by  the  last  clause  of  the  eighth  section,  it  is 
provided  that,  on  the  death  or  resignation  of  any  director,  the 
remaining  directors  shall  choose,  from  among  the  stockholders, 
some  fit  person  to  fill  the  vacancy,  who  shall  hold  his  office  till 
the  next  annual  meeting. 

Under  this  act,  what  is  the  mode  of  expressing  the  binding 
will  of  the  corporation?  If,  on  due  notice  to  all  the  directors, 
three  only  meet,  can  a  majority  of  them  bind  the  corporation  ? 
It  is  said,  in  2  Kent's  Com.  293,  that  there  is  a  distinction  taken 
tatween  a  corporate  act.  to  be  done  by  a  select  and  definite 
body,  and  oue  '*•  be  performed  by  the  constituent  members.  In 


168  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

the  latter  case,  a  majority  of  those  who  appear,  may  act,  but,  in 
the  former,  a  majority  of  the  definite  body  must  be  present,  and 
then  a  majority  of  the  quorum  may  decide.  This,  the  author 
says,  is  the  general  rule  on  the  subject;  and  if  any  corporation 
has  a  different  mode  of  expressing  its  binding  will,  it  arises 
from  the  specific  provisions  of  the  act  of  incorporation. 

The  act  incorporating  this  company  does  not  give,  specially, 
any  definite  mode  of  expressing  the  will  of  the  corporation.  It 
does  not  say,  in  words,  that  the  concurrence  of  three  of  the 
five  directors  shall  be  necessary  to  bind  the  corporation,  nor 
that  three  shall  be  a  quorum.  The  provisions,  in  this  respect, 
differ,  in  words,  in  different  parts  of  the  act.  In  two  clauses, 
the  words,  "or  a  majority  of  them,"  occur.  These  clauses 
authorize  the  president  and  directors,  or  a  majority  of  them,  to 
appoint  officers,  and  to  call  in  installments.  Is  it  intended  that, 
when  three  are  duly  met,  two  of  them  may  make  the  appoint- 
ments, and  call  in  installments,  or  is  the  concurrence  of  three 
of  the  five  necessary?  I  have  great  difficulty  in  supposing  that 
the  legislature,  when  they  say  that  a  majority  of  the  five  may 
appoint  officers  and  call  in  installments,  intended  that  two  of 
the  five  might  do  it,  if  a  third  should  be  present,  though  he 
should  vote  against  it.  If,  in  these  clauses,  this  was  not  intend- 
ed, was  it  intended  to  give  a  different  rule  in  the  other  clauses? 
The  act  of  a  majority  of  those  who,  by  the  charter,  have  a 
voice  in  the  corporate  deliberations,  will  bind.  The  question  is, 
what  shall  be  considered  the  act  of  that  majority?  Mr.  Kyd 
says  that  in  different  corporations,  the  manner  in  which  the 
majority  shall  be  reckoned,  varies  according  to  the  provisions 
of  the  charter.  Sometimes,  the  act  that  is  to  bind  must  be  sanc- 
tioned by  the  assent  of  an  absolute  majority  of  the  body  empow- 
ered to  act;  sometimes,  it  is  sufficient  if  a  majority  of  the  body 
be  assembled,  and  the  majority  of  those  assembled  agree  to  the 
act.  Kyd  309. 

Which  of  these  rules  does  this  act  give — or  does  it  give 
different  rules  for  different  purposes?  Does  it  require  the  con- 
currence of  three  voices  to  appoint  an  agent,  and  of  only  two 
to  make  a  deed?  Lawrence,  Justice,  in  Witherall  v.  Gartham, 
6  T.  R.  592,  says  :  "In  general,  it  would  be  the  understanding 
of  a  plain  man,  that  when  a  body  of  persons  is  to  do  an  act,  a 


SEPTEMBER  TERM,  1845.  169 

Van  Hook  v.  Somerville  Manufacturing  Co. 

majority  of  that  body  would  bind  the  rest."  I  think  a  plain 
man  would  quite  as  readily  understand,  that  a  minority  of  the 
body  could  not,  under  any  circumstances. 

Without  deciding  what  is  the  construction  of  the  act  in  this 
respect,  (for  I  have  disposed  of  the  cause  on  other  grounds,)  I 
am  willing  to  say  that  the  experience  of  New  Jersey  in  refer- 
ence to  the  proceedings  of  corporations,  furnishes  strong  argu- 
ments to  her  judicial  tribunals,  to  induce  them  to  look  narrowly 
into  the  powers  given  by  acts  of  incorporation.  But,  under 
both  these  clauses,  not  less  than  three  can  constitute  a  board  to 
do  a  corporate  act.  Could  Stebbins,  with  two  other  directors, 
constitute  a  board  to  vote  a  mortgage  from  the  company  to  him? 
I  think  not.  A  member  of  a  corporation  contracting  with  it,  is 
regarded,  as  to  that  contract,  as  a  stranger.  Ang.  and  Ames  168, 
169;  1  Kyd  on  Corporations  180. 

This  brings  us  to  an  inquiry  of  fact  in  the  case.  Were  there 
three  directors  other  than  Stebbins  present,  duly  assembled,  at 
the  meeting  or  meetings  at  which  the  acts  necessary  to  bind  the 
company  by  (his  bond  and  mortgage  to  him,  were  done?  It  is 
shown  by  the  testimony  of  Brown  and  Packer,  that  at  the 
meeting  of  the  10th  of  January,  1842,  but  three  of  the  direc- 
tors were  present,  and  Stebbins  was  one  of  them.  This  fact  is 
uncontradicted,  unless  the  minutes  are  sufficient  to  overcome 
this  direct  testimony,  and  to  show  that  four  of  the  directors 
were  then  present.  "The  books  and  minutes  of  a  corporation, 
if  there  is  nothing  to  raise  a  suspicion  that  the  corporate  pro- 
ceedings have  been  irregular,  will  be  treated  and  referred  to  as 
evidence  of  the  legality  of  the  proceedings."  Angell  and  Ames 
407.  However  regular  and  free  from  suspicion  on  the  face 
of  them,  they  would  be  but  prima  fade  evidence.  I  have 
examined  the  minutes  carefully.  The  appearance  of  them 
is  too  suspicious  to  allow  them  to  overcome  the  testimony  of 
Brown  and  Packer.  It  is  plain  that  at  the  meeting  of  the  10th 
of  January,  there  were  but  two  directors  present  besides  Steb- 
bins. As  to  the  word  "  board,"  as  used  by  the  witnesses,  it  is 
evident  they  use  it  without  regard  to  the  question  whether  a 
meeting  of  three  directors,  including  Stebbins,  would  be  a  com- 
petent board  to  give  a  mortgage  to  him. 

The  meeting  of  Gaston,  Packer  and  Stebbins,  on  the  10th, 

VOL.  i.  L 


170  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

of  January,  the  minutes  of  which  say  that  a  resolution  was 
then  passed,  ordering  the  president  to  sign  the  bond  and  mort- 
gage and  affix  thereto  his  own  seal,  which  was  thereby  acknowl- 
edged and  adopted  as  the  seal  of  the  company  for  that  purpose, 
was  not  a  legal  board  for  the  purpose  of  giving  a  mortgage  to 
Stebbins.  But  the  affixing  the  seal  of  a  corporation  is  a  minis- 
terial act,  and  may  be  done  by  a  less  number  than  is  necessary 
to  constitute  a  board,  if  it  be  done  by  the  direction  of  a  legal 
board.  Angell  and  Ames  155,  158,  406.  Was  there  any  pre- 
vious meeting  of  a  legal  board  for  giving  a  mortgage  to  Steb- 
bins, at  which  the  affixing  the  seal  to  the  bond  and  mortgage 
was  directed  to  be  done?  The  minutes,  as  they  now  appear, 
show,  under  a  heading  of  a  meeting  on  the  5th  of  January, 
1842,  which  states  that  Gas  ton,  Stebbins,  Van  Renselaer  and 
Packer  were  present,  and  prior  to  the  heading  of  the  meeting 
of  the  10th,  two  entries,  one  directing  the  president  to  execute 
the  bond  and  mortgage  and  affix  thereto  a  common  seal,  and  the 
other,  stating  that  that  meeting  was  then  adjourned  to  the  office 
of  George  H.  Brown,  esquire,  January  10th,  at  5  P.  M.,  1842. 
When  these  two  entries  were  made  was  not  shown.  The  secre- 
tary of  the  company  was  not  examined,  nor  did  the  book  of 
minutes  appear  at  any  of  the  examinations  of  witnesses ;  nor 
does  the  witness  Brown,  say  that  he  saw  the  book  of  minutes 
and  these  entries  in  it,  at  or  before  the  execution  of  the  bond 
and  mortgage.  It  is  obvious  that  it  may  have  been  supposed 
by  some  person,  at  some  period  before  the  bond  and  mortgage 
were  assigned,  that  such  a  state  of  the  minutes  as  would  appear 
to  show  an  adjournment  from  a  former  meeting  at  which  three 
directors  besides  Stebbins  were  present,  might  put  the  question 
of  the  validity  of  the  bond  and  mortgage  on  a  better  footing 
than  if  it  stood  simply  on  the  resolution  appearing  in  the  min- 
utes of  the  meeting  of  the  10th,  the  heading  of  which  does  not 
state  how  many  or  who  were  present.  A  careful  examination 
of  the  minutes,  compared  with  testimony,  has  satisfied  me  that 
the  entry  stating  an  adjournment  from  the  5th  to  the  10th,  is 
not  a  correct  entry  ;  and  that  it  was  made,  not  on  the  5th  of 
January,  but  at  some  subsequent  time.  [The  reasons  for  this 
conclusion  are  here  stated.] 

There  may  have  been  another  reason  for  introducing  this 


SEPTEMBER  TERM,  1845.  171 

Van  Hook  v.  Somerville  Manufacturing  Co. 


entry  of  adjournment  from  the  5th  to  the  10th.  The  heading 
of  the  minutes  of  the  meeting  of  the  5th  is,  "At  a  meeting  of 
the  board  of  directors  of  the  company,  at  the  house  of  John 
Torbert,  innkeeper,  pursuant  to  notice  duly  given  to  said  direc- 
tors respectively,  the  following  persons  were  present;"  naming 
Gaston,  Van  Renselaer,  Stebbins  and  Packer.  It  may  have 
been  supposed  that  the  entry  of  an  adjournment  from  the  5th 
to  the  10th,  would  have  the  effect  of  making  the  meeting  of  the 
10th  appear  to  be  a  meeting  on  due  notice.  Whether  this  would 
be  so,  if  all.  the  directors  were  not  present  at  the  first  meeting, 
is  at  least  doubtful,  in  reference  to  business  of  an  extraordinary 
character.  The  entry  of  an  adjournment  was  made  for  some 
purpose,  and  was  thought  necessary  or  proper  by  some  person, 
for  some  purpose;  but,  from  the  appearance  of  the  minutes,  in 
connection  with  the  testimony,  I  think  it  was  not  made  in  ac- 
cordance with. the  fact. 

As  to  the  resolution  appearing  on  the  minutes  as  of  January 
6th,  1842,  directing  the  president  to  execute  the  bond  and 
mortgage  and  affix  thereto  a  common  seal,  the  book  of  minutes 
furnishes  no  evidence  to  be  relied  upon,  that  it  was  passed  at  a 
meeting  on  due  notice,  at  which  three  directors,  besides  Steb- 
bins, were  present — no  evidence  that  it  was  passed  by  a  legal 
board.  And  Van  Renselaer,  who  from  the  minutes  would  ap- 
pear to  have  been  present,  says  he  has  no  recollection  that  at  a 
meeting  of  the  board  an  order  was  made  directing  a  mortgage 
to  be  given  to  Stebbins.  He  says  he  knows  a  mortgage  was 
given,  sanctioned  by  the  board,  and  that  he  consented  to  it. 
This  does  not  prove  that  he  was  present  at  the  meeting  which, 
he  says,  sanctioned  it;  and  the  consent  of  an  individual  direc- 
tor, not  sitting  in  a  legal  board,  is  nugatory.  If  Van  Renselaer 
was  not  present,  then  it  could  only  have  been  sanctioned  at  a 
meeting  of  three,  of  whom  Stebbins  was  one,  for  it  is  shown 
lliat  Ibbotson  was  absent,  out  of  the  state. 

If  1  am  right  in  the  conclusion  to  which  I  have  come  from 
an  examination  of  the  book  of  minutes  and  of  the  testimony, 
then  the  resolution  appearing  on  the  minutes  as  of  January 
6th,  1842,  directing  a  bond  and  mortgage  to  be  given  to  Steb- 
bins,  depends  for  its  efficacy  on  a  simple  entry  of  a  resolu- 
tion, on  minutes  of  very  suspicious  appearance,  without  any 


172  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

statement  of  a  meeting  of  the  board,  without  stating  who  were 
present,  or  the  presence  of  any  one,  without  any  proof  of  no- 
tice of  the  meeting,  and  without  proof  aliunde  that  a  board  was 
present,  and  against  the  testimony  of  one  of  the  directors  that 
he  has  no  recollection  of  such  a  resolution  being  passed  at  any 
meeting  of  the  board,  and  against  the  presumption  of  the  ab- 
sence of  another  of  the  five  directors,  Ibbotson,  arising  from  his 
non-residence.  It  appears  to  me  that  it  would  be  going  too  far 
to  say  that  such  an  entry  as  that  of  this  resolution  of  January 
5th,  is  binding  on  the  corporation. 

Again,  this  was  a  business  of  an  extraordinary  character,  the 
mortgaging  the  real  estate  of  the  corporation.  Is  an  entry  in  the 
minutes,  even  if  free  from  suspicion,  that  the  meeting  was  held 
on  due  notice,  sufficient  evidence  of  it,  if  it  appears,  as  it  does 
here,  that  all  the  directors  did  not  attend  ?  Indeed,  the  true 
reading  of  the  heading  under  which  this  was  introduced  is,  that 
it  was  on  due  notice  to  the  directors  who  attended. 

On  the  question,  then,  whether  this  bond  and  mortgage  were 
legally  given,  so  as  to  bind  the  corporation,  there  are  several 
matters  about  which  I  am  not  satisfied.  I  am  not  satisfied  that 
under  this  charter,  the  concurrence  of  less  than  three  affirmative 
voices  out  of  the  five  directors  will  bind  ;  nor  that  the  meetings 
which  passed  the  resolutions  of  January  5th  and  January  10th,. 
1842,  were  duly  assembled  ;  nor  that  three  of  the  directors  be- 
sides Stebbins  voted  for  either  of  them  ;  nor  that  Stebbins,  with 
two  other  directors,  could  constitute  a  board  to  direct  a  mort- 
gage to  be  given  to  him.  But  as  to  these  matters,  I  do  not  give 
a  decided  opinion.  My  view  of  the  case  on  another  ground  of 
defence,  has  led  me  to  a  conclusion  satisfactory  to  my  mind,  and 
I  shall  decide  the  cause  on  that  ground. 

The  ground  of  defence  now  to  be  examined  is,  that  the 
mortgage  was  given  to  Stebbins  as  the  agent  of  the  company, 
to  enable  him  to  raise  money  for  the  company,  on  his  represen- 
tation to  the  directors  that  the  money  needed  by  the  company 
could  not  be  raised  on  the  bond  and  mortgage  of  the  company 
direct  to  any  lender;  or  after  failure  so  to  raise  money,  and  on 
his  representation  that  he  could  raise  it  on  a  bond  and  mortgage 
of  the  company  executed  to  him,  by  an  assignment  of  it  to  some 
person,  allowing  the  lender  a  premium  or  greater  rate  of  inter- 


SEPTEMBER  TERM,  1845.  273 

Van  Hook  v.  Somerville  Manufacturing  Co. 

est  than  the  legal  interest,  and  that  this  was  the  only  way  in 
which  the  money  could  be  raised  ;  and  that  the  mortgage  was 
given  under  such  circumstances  (which  it  is  contended  are 
shown  in  evidence)  that  to  enforce  it  against  the  company  would 
be  a  fraud  on  the  directors  and  the  company ;  in  short,  that  as 
a  mortgage  of  the  company  to  be  used  by  Stebbins  against 
them,  it  was  procured  by  fraud. 

If  these  papers  were  obtained  for  the  purpose  of  raising 
money  for  the  company,  and  are  fraudently  attempted  to  be 
used  by  the  party  obtaining  them,  as  securities  given  to  him  for 
his  own  benefit,  it  will  be  considered  that  when  he  obtained 
them,  and  in  using  the  means  of  obtaining  them,  he  entertained 
the  design  of  using  them  for  his  own  benefit,  and  that  therefore 
he  obtained  them  fraudulently. 

I  am  of  opinion  that  the  bond  and  mortgage  were  not  good 
in  the  hands  of  Stebbins  against  the  company.  He  acted  as 
the  general  and  financial  agent  of  the  company.  (It  is  not  ma- 
terial to  the  present  purpose,  to  inquire  whether  such  an  agent 
can  be  legally  appointed,  and  a  director  can  be  such  an  agent.) 
On  the  1st  of  January,  1841,  a  resolution  appears  on  the  rain 
utes  of  a  meeting  at  which  Gaston,  Van  Renselaer,  Stebbins, 
and  Packer  are  stated  to  have  been  present,  authorizing  Steb- 
bins to  negotiate  a  loan  of  any  sum  not  exceeding  $5000,  and 
to  give  a  bond  of  the  company  and  a  mortgage  on  their  fac- 
tory and  the  lot  on  which  it  stands,  to  secure  the  payment 
thereof.  On  the  23d  of  August,  1841,  a  resolution  appears, 
without  any  heading  of  a  meeting  or  statement  who  were  pre- 
sent, that  J.  N.  Stebbins,  agent  of  the  Somerville  Manufactur- 
ing Company,  is  authorized  to  loan  money  from  the  State  Bank 
at  Elizabethtown,  from  time  to  time,  by  notes  or  drafts,  pro- 
vided the  liability  of  said  company  shall  not  at  any  time  exceed 
$15CO.  On  the  5th  of  January,  1842,  two  resolutions  appear, 
one,  a  resolution  that  a  bond  and  mortgage  be  executed  to  the 
State  Bank  at  Elizabeth,  to  secure  the  personal  liability  of  the 
president  and  directors  of  the  Somerville  Manufacturing  Com- 
pany to  said  bank,  for  money  loaned  or  to  be  loaned,  the  sum. 
not  to  exceed  $1500;  the  other,  a  resolution  "that  the  presi- 
dent is  hereby  authorized  and  directed  to  execute  a  bond  and 
mortgage  to  Jared  N.  Stebbins,  for  $9600 ;  payable  in  three 


174  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

years  from  date,  the  interest  to  be  paid  annually  and  every 
year." 

Each  of  these  resolutions,  except  the  last,  shows  on  its  face 
the  object  for  which  the  securities  mentioned  in  it  are  to  be 
given.  The  last  simply  authorizes  and  directs  the  president  to 
execute  a  bond  and  mortgage  to  Jared  N.  Stebbins  for  $9600, 
without  stating  the  reason  or  the  object  or  purpose  why  or  for 
which  it  was  to  be  given. 

The  first  resolution  is,  that  Stebbins  negotiate  a  loan  of 
$5000,  on  the  bond  and  mortgage  of  the  company  to  the 
lender.  This  mode  of  borrowing  money  failed.  Through 
the  course  of  the  year  other  means  were  used  for  borrow- 
ing money,  with  some  success,  but  not  to  the  amount  re- 
quired ;  and  on  the  5th  of  January,  1842,  the  last  of  the  said 
resolutions  was  adopted,  (supposing  for  this  part  of  the  case 
that  it  was  legally  adopted,)  directing  a  bond-and  mortgage  to 
be  given  to  Stebbins,  without  saying  for  what  reason  or  consid- 
eration ;  and  Stebbins  now  claims  that  this  mortgage  is  a  valid 
security  in  his  hands,  and  seeks  to  enforce  it  against  the  com- 
pany. This  would  be  the  state  of  the  matter  as  Letween  Steb- 
bins and  the  company. 

Three  of  the  persons  who  were  directors  at  th<j  time  of  the 
transaction,  have  been  sworn  in  the  cause — two  of  them  called 
on  the  part  of  the  defendants,  and  the  other  on  the  part  of  the 
complainant — in  reference  to  the  object  of  giving  tht>  mortgage, 
and  the  manner  and  means  in  and%  by  which  those  of  the  direc- 
tors who  voted  for  it,  were  induced  to  do  so.  [The  testimony 
on  this  part  of  the  case  is  here  examined.]] 

The  closing  counsel  for  the  complainant  contends  1  that  the 
amount  of  the  testimony  was  this:  that  Stebbins  wss  tc  raise 
the  money  on  the  mortgage  given  to  him  for  his  debt,  and  to 
appropriate  some  $2000  or  $3000  of  it  to  pay  the  deb's  of  the 
company,  and  to  make  advances  as  one  interested  in  'fee  com- 
pany. This  explanation  is  hardly  satisfactory.  The  fw^lu- 
sion  I  have  reached  is,  that  as  a  bond  and  mortgage  t(  be 
used  by  Stebbins  against  the  company,  they  were  procured  by 
fraud. 

The  next  question  is,  will  the  bond  and  mortgage  l»e  gtM 
in  the  hands  of  Van  Hook,  if  he  be  a  bonafide  holder?  Tha 


SEPTEMBER  TERM,  1845.  175 

Van  Hook  v.  Somerville  Manufacturing  Co. 

vase  of  Barrow  v.  Bispham,  iu  the  Supreme  Court  of  this  state, 
6  Ifalst.  119,  decides  that  the  assignee  of  a  bond  takes  it  subject 
to  all  the  equities  which  existed  against  it  iu  the  hands  of  the 
obligee,  and  that  fraud  in  the  obligee  iu  obtaining  it  is  a  good 
defence  against  the  assignee,  though  he  purchased  it  for  a  valua- 
ble consideration,  and  without  notice  of  the  fraud. 

This  principle  may  not  be  fully  applicable  to  this  case.  These 
securities  (assuming  now  that  they  were  legally  executed)  were 
executed  to  Stebbins,  the  agent,  to  enable  him  to  raise  money 
for  the  -company  by  an  assignment  of  them.  If  the  agent  had 
used  them  dn  the  manner  contemplated,  and  obtained  the  money, 
the  company  would  be  liable  on  them,  though  the  agent  failed 
to  apply  the  money  to  the  use  of  the  company.  Can  securities 
made  to  an  agent,  to  be  by  him  assigned  to  raise  money  for  the 
company,  be  resisted,  in  the  hands  of  a  bona  fide  assignee,  on 
the  ground  that  he  assigned  them  for  real  estate,  for  purposes 
of  his  own  ?  I  am  inclined,  to  think  that  the  rule  in  6  HalxL 
should  not  be  applied  in  this  court,  in  a  case  like  this,  against  a 
purchaser  in  good  faith  and  without  notice.  Is  the  complainant 
such  an  assignee  ? 

First,  as  to  good  faith,  irrespective  of  notice.  In  this  inquiry 
it  must  be  borne  in  mind  that  Stebbins,  iu  the  measures  taken 
during  the  progress  of  what  he  called  the  negotiation,  was  acting 
with  the  knowledge  that  the  mortgage  was  executed  to  him 
to  raise  money  for  the  company,  and  yet  with  the  design,  as 
proved  by  the  result,  of  making  it  available  for  his  own  benefit. 
I  think  it  cannot  be  doubted  that  he  was  acting  under  the  con- 
viction that  it  would  be  resisted,  if  attempted  to  be  used  by  him 
against  the  company  as  a  mortgage  for  his  own  benefit.  His 
object,  then,  would  be  to  get  it  into  the  hands  of  one  who 
should  claim  as  assignee,  and  to  get  as  much  as  he  could  from  the 
officers  of  the  company  to  strengthen  the  claim  of  the  assignee. 
I  think  it  will  be  manifest  that  the  whole  course  of  proceeding 
connected  with  the  assignment,  is  consistent  only  with  this 
design  on  the  part  of  Stebbins,  and  is  inconsistent  with  the  idea 
that  die  complainant  was  a  real  purchaser  iu  good  faith.  No 
man,  acting  with  sincerity  and  good  faith,  would  have  been 
satisfied  to  buy  this  mortgage,  and  pay  for  it  on  the  cmlit  of  the. 
papers  which  Stebbius  procured  from  the  president  and  secretary 


176  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

of  the  company.  And  I  am  clearly  of  opinion  that  he  never 
did  buy  and  pay  for  this  mortgage — a  mortgage  on  a  manufac- 
turing site  without  water-power,  and  to  which  a  lease  of  water 
had  been  refused.  The  certificates  and  suppletory  resolutions. 
or  copies  of  what  purported  to  be  resolutions,  were  procured  by 
Stebbins,  and  at  his  instance,  with  a  view  to  aid  the  mortgage 
in  the  hands  of  an  assignee  for  his  own  benefit. 

A  certificate  of  John  I.  Gaston,  and  another  writing  signed 
by  him,  which  it  is  difficult  to  characterize,  and  a  copy  of  what 
purports  to  be  a  resolution  of  June  28th,  1842,  are  exhibited  on 
the  part  of  the  complainant.  The  certificate  is  dated  June  28th, 
1842,  and  is  signed  John  I.  Gaston,  without  addition,  and  pur- 
ports to  certify  that  a  bond  and  mortgage  for  $9600  was  given 
and  executed  by  him  to  J.  N,  Stebbins,  as  president  of  the 
Somerville  Manufacturing  Company,  by  order  of  the  board  of 
directors,  as  said  amount  was  due  him  as  agent  of  the  company, 
and  that  he  knew  of  nothing  that  could  be  brought  against  said 
claim  in  abatement,  or  in  any  way  destroy  its  validity. 

The  resolution  of  June  28th,  1842,  of  which  a  copy  is  exhib-  , 
ited,  signed  J.  A.  Gaston,  secretary,  is  as  follows : 

"At  a  meeting  held  June  28th,  1842,  the  following  preamble 
and  resolution  were  adopted  :  Whereas  a  certain  bond  and 
mortgage,  given  by  the  Somerville  Manufacturing  Company  to 
Jared  N.  Stebbins,  for  the  sum  of  $9600,  bearing  date  the  10th 
day  of  January,  1842,  has  been  this  day  submitted  to  the  in- 
spection of  this  board ;  and  the  same  having  been  considered 
and  examined,  it  is  resolved,  that  the  said  bond  and  mortgage 
is  a  legal  and  subsisting  liability  of  the  said, company,  and  that 
they  have  no  defence  to  make  to  the  same,  either  in  law  or  equity. 

"  June  28th,  1842.  J.  A.  GASTON,  Secretary." 

A  letter  had  been  written  by  Stebbins  to  Gaston,  from  New 
York,  dated  March  29th,  1842,  in  which  he  says  he  finds 
obstacles  in  the  way  of  negotiation  ;  that  he  wants  a  certificate 
from  Gaston,  as  president,  that  the  bond  and  mortgage  is  a 
valid  one,  given  him  for  the  amount  due  him.  On  the  28th  of 
June,  1842,  he  receives  the  foregoing  paper,  signed  by  John  I. 
Gatiton,  not  as  president,  and  stating,  not  "  that  the  bond  and 
mortgage  were  valid,  given  him  for  the  amount  due  him,"  as 
requested  by  the  letter,  but,  that  they  were  given  and  executed 


SEPTEMBER  TERM,  1845.  177 

Van  Hook  v.  Soraerville  Manufacturing  Co. 

to  Stebbins,  "as  said  amount  was  due  said  Stebbins,  as  agent  of 
the  company." 

If  the  mortgage  had  been  given  to  Stebbins  for  an  amount 
due  him,  why  was  it  that  Gaston  not  only  omits  to  sign,  as 
president,  but  falls  short  of  saying  what  the  letter  asks?  The 
truth  of  Gaston's  deposition,  that  he  gave  the  certificate  for  the 
same  purpose  the  bond  and  mortgage  were  given  for — to  enable 
him  (Stebbins)  to  make  the  loan — to  aid  him  in  making  the 
loan — and  that  he  never  gave  Stebbins  a  certificate  that  the 
company  had  given  him  the  bond  and  mortgage  for  any  debt 
due  him  from  the  company,  is  confirmed  by  the  language  of 
this  so-called  certificate.  Gaston  was  willing  to  say  as  much 
as  he  could  in  aid  of  that  object,  but  the  restraint  of  the  lan- 
guage of  the  certificate  is  manifest.  The  design  of  Stebbins, 
before  spoken  of,  is  obvious  from  the  language  of  the  letter. 
lu  view  of  the  fact,  as  it  appears  by  the  result,  that  Stebbins 
was  about  putting  these  papers  in  the  hands  of  an  assignee,  for 
a  deed  to  his  son  of  property  in  New  York,  it  is  plain  that  he 
was  availing  himself  of  the  pressure  on  the  company  for  money, 
to  procure  from  the  president  what  he  supposed  might  give 
effect  to  the  mortgage  in  the  hands  of  an  assignee.  But  Gas- 
ton,  even  under  the  pressing  necessities  of  the  company,  would 
not  give  the  certificate  asked,  though  acting  under  the  belief 
that  Stebbins  was  honestly  endeavoring  to  negotiate  the  mort- 
gage for  money  for  the  company.  This  certificate  is  exhibited 
by  the  complainant  to  show  good  faith  in  him  in  taking  the 
assignment.  (It  will  be  recollected  that  the  negotiation,  as 
Stebbins  called  it,  which  ended  in  the  alleged  trade  for  the  New 
York  property,  commenced  some  months  before  the  28th  of 
June.  (Did  the  complainant  require  the  certificate  Stebbins 
wrote  for?  If  he  did  not,  then  its  procurement  by  Stebbins, 
and  its  production  now,  by  the  complainant,  are  consistent 
only  with  the  design  of  Stebbins,  before  stated,  and  with  a 
want  of  good  faith  in  the  complainant.  If  it  was  at  his  sug- 
gestion that  Stebbins  wrote  on  the  29th  of  March,  asking 
the  certificate  mentioned  in  that  letter,  would  what  Steb- 
bins, after  the  lapse  of  three  months,  procured,  have  been 
satisfactory,  to  one  proposing  in  good  faith,  to  buy  the  mort- 
gage ?  Its  language  was  short  of  what  the  letter  asked,  and 


178  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

it  was  not  signed  by  Gaston,  as  president;  and,  if  what  was 
requested  to  be  certified,  was  true,  Gaston  could  have  had  no 
hesitation  in  giving  the  certificate  in  the  language  of  the  letter, 
and  signing  it  as  president;  and,  besides,  the  certificate,  if  given 
as  required,  would  be  no  evidence  whatever  of  the  fact  it  pur- 
ported to  certify.  The  only  object  that  could  have  been  had  in 
procuring  it  was,  that  it  might  furnish  some  evidence  of  good 
faith  in  the  complainant  in  taking  the  assignment.  The  resort 
to  such  means,  in  view  of  the  inquiries  he  put,  and  of  others  he 
failed  to  put  to  Gaston,  when  Stebbins  took  him  out  to  Somer- 
ville, are  little  calculated  to  show  his  good  faith,  or  to  satisfy  us 
that  a  man  of  the  business  capacity  of  the  complainant  would, 
or  did  part  with  his  property,  and  put  it  out  of  his  control,  on 
the  faith  of  such  a  paper. 

But  this  letter  of  Stebbins  went  further,  and  said:  "The 
best  way  is,  to  copy  the  resolution  on  the  books,  provided 
there  is  nothing  else  in  the  said  resolution."  An  entry 
of  a  resolution  appears  on  the  minutes,  of  the  same  date 
with  the  said  certificate — June  28th,  1842.  It  is  the  entry, 
a  copy  of  which,  signed  J.  A.  Gaston,  secretary,  is  before 
given.  This  entry,  and  the  copy  of  it,  signed  by  the  secretary, 
and  the  above  certificate  of  Gaston,  were  made  for  the  purpose 
of  removing  the  obstacles  which  Stebbins  said  he  found  in  the 
way  of  negotiation.  Stebbins  wanted  a  resolution  "that  the 
bond  arid  mortgage  is  a  valid  one,  given  him  for  the  amount 
due  him,"  "provided  there  is  nothing  else  in  said  resolution;" 
and  he  wanted  the  certificate  of  the  president  to  the  same 
effect. 

To  show  Stebbins'  idea  of  the  way  in  which  things  might 
be  done,  and  the  boldness  with  which  he  availed  himself  of  the 
pressure  on  the  company  for  money,  in  order  to  get  from  Gas- 
ton  something  which  he  hoped  might  make  the  mortgage  good 
in  the  hands  of  an  assignee,  we  have  only  to  ask  how,  accord- 
ing to  his  notions,  such  a  resolution  and  certificate  were  to  be 
made.  Ibbotson  was  absent;  Van  Renselaer  lived  out  of  the 
state,  and  he  testifies  that  "  he  knew  nothing  of  the  resolutions 
of  the  board  or  the  certificates  of  the  president,  in  relation  to 
the  mortgage,  at  the  time  of  the  transfer  to  Van  Hook,  or  of 
the  machinery  by  which  said  resolutions  and  certificates  weru 


SEPTEMBER  TERM,  1845.  179 

Van  Hook  v.  Somerville  Manufacturing  Co. 

obtained  which  resulted  in  the  negotiation  of  the  mortgage,  he 
not  having  been  present  at  any  of  the  meetings  of  the  board 
when  the  resolutions  were  passed  and  the  certificates  were  given;" 
and  Stebbins  was  in  New  York  when  he  wrote  the  letter.  This 
left  but  two  of 'the  directors,  Gaston  and  Packer,  to  comply  with 
the  requirements  of  his  letter. 

How  it  is  that  this  certificate  and  entry  of  a  resolution  and 
copy  of  it  were  not  made  till  June  28th,  does  not  appear.  Three 
months  elapsed  before  the  certificate,  such  as  it  was,  was  given. 
I  suppose  the  truth  to  be,  that  Stebbins'  immediate  presence 
and  aid  were  necessary  to  procure  them  ;  and  inasmuch  as  Vau 
Hook  could  not  make  a  deed  for  the  New  York  property  till 
after  he  should  get  a  deed  for  it  under  his  foreclosure  suit,  and 
Stebbins  could  make  no  arrangement  with  any  one  else  to  take 
an  assignment  of  the  mortgage,  the  delay  worked  no  injury  to 
either  of  them.  What  would  be  the  effect  of  the  delay  on  the 
mind  of  a  person  intending,  in  good  faith,  to  buy  the  mortgage,  is 
another  matter.  But  the  entry  of  this  resolution  was  at  length 
made,  and  the  copy  of  it  and  the  certificate  of  Gaston,  as  above 
given,  were  procured.  The  resolution  was  either  caused  to  be 
entered  by  Gaston  alone,  or  by  Stebbins  and  Gastou,  or  at  best, 
at  a  meeting  composed  of  Gaston,  Stebbins  and  Packer.  Pack- 
er says  he  cannot  say  whether  he  was  present  or  not.  And  if 
he  was,  it  would  not  be  a  competent  board  for  the  purpose,  for 
the  reason  that  if  it  was,  then  a  mortgage  to  one  of  five  direc- 
tors might  be- declared  to  be  a  legal  and  subsisting  liability  of 
the  company  by  a  vote  of  that  director  and  one  other.  But  this 
entry  is,  in  its  terms,  still  less  a  compliance  with  the  request 
than  the  certificate  of  Gaston ;  and  as  to  the  form  of  it,  it  is 
headed  thus :  "  At  a  meeting  held  June  28th,  1842,  the  fol- 
lowing preamble  and  resolution  were  passed."  Who  were 
present  at  the  meeting  ?  where  was  it  held  ?  by  whom  was  the 
resolution  passed  ?  It  cannot  be  that  the  complainant,  in  good 
faith,  bought  the  mortgage  on  the  credit  of  the  papers  exhibited 
by  him  in  the  cause. 

Another  paper  is  exhibited  on  the  part  of  the  complainant. 
•It  is  the  one  which  I  have  before  said  it  is  difficult  to  character- 
ize; a  writing  at  the  foot  of  a  statement  of  Stebbins'  account 
against  the  company.  It  is  in  the  handwriting  of  John  I.  Gas- 


180  CASES  IN  CHANCERY. 

Van  Hook  v.  Soraerville  Manufacturing  Co. 

ton,  and  reads  thus:  "The  board  of  directors  having  examined 
the  above  account,  do  pass  the  same,  and  acknowledge  a  balance 
due  J.  N.  Stebbins  of  $9638.17.  Signed  by  order  of  the  board. 

^         "  JNO.  I.  GASTON,  President. 
,     "January  5th,  1842." 

What  is  the  character  of  this  writing?  It  does  not  purport 
to  be  a  certified  copy  of  a  resolution,  but  would  rather  seern  to 
purport  to  be  an  original  resolution,  or  perhaps  more  like  a  cer- 
tificate of  Gaston  that  such  a  thing  was  done.  When  was  it 
furnished,  or  sent,  or  given  to  Stebbins?  There  can  be  no 
doubt  it  was  one  of  the  papers  sent  or  given  to  Stebbins  in  com- 
pliance with  his  request  in  his  letter  of  March  29th,  1842,  or 
ou  a  similar  request  further  urged  by  him  afterwards;  and 
hence  the  singularity  of  its  form.  The  date  put  to  it  is  not  the 
date  at  which  this  writing,  or  certificate,  or  whatever  it  may  be 
called,  was  made,  but  purports  to  be  the  date  at  which  what  is 
said  in  the  writing  to  have  been  done  was  done.  The  form  of 
this  writing  adds  another  proof  "that  all  the  exhibits  on  the  part 
of  the  complainant  were  got  up  long  subsequently  to  the  exe- 
cution of  the  mortgage,  at  the  instance  of  Stebbins,  to  serve  his 
design  ;  and  that  the  nature  of  the  transaction  between  Steb- 
bins and  the  complainant,  as  it  finally  resulted,  was  different 
from  that  of  a  bona  fide  purchase  of  this  bond  and  mort- 
gage. Does  Gaston,  by  this  writing,  say  that  the  board  passed 
such  a  resolution  on  the  5th  of  January,  1842?  Certainly 
not.  If  such  a  resolution  had  been  passed  at  .that  date,  and 
then  placed  ou  the  minutes,  it  cannot  be  imagined  that  such 
a  nondescript  writing  as  this  would  have  been  resorted  to; 
a  copy  of  such  resolution,  if  it  had  been  so  passed,  made 
in  such  a  way  as  to  satisfy  a  man  proposing  in  good  faith  to 
buy  the  bond  and  mortgage,  would  have  been  required  and 
made.  The  production  of  such  a  paper  amounts  to  less  than 
nothing  on  the  question  of  the  good  faith  of  the  complainant. 
"  The  board  of  directors,  having  examined/'  &c.  Is  this  the 
form  of  a  resolution  as  it  would  appear  on  the  minutes?  The 
very  form  of  this  writing,  instead  of  giving  satisfaction,  carries 
plain  and  strong  marks  of  suspicion.  Who  were  present  when 
any  such  resolution  was  passed  ?  who  constituted,  or  pretended 
to  constitute,  a  board  to  pass  it?  aud  how  were  they  assem- 


SEPTEMBER  TERM,  1845.  181 

Van  Hook  v.  Somerville  Manufacturing  Co. 

bled  ?  was  Stebbins  himself  one  of  them  ?  As  to  these  matters 
the  writing  is  silent.  And,  what  is  quite  as  singular,  Gaston, 
though  produced  as  a  witness  in  the  cause  on  the  part  of  .the 
defendants,  was  not  shown  this  writing  by  the  complainant,  nor 
asked  when  or  where  any  such  resolution  was  passed.  Why 
Stebbins  should  not  have  the  question  asked  is  sufficiently  plain, 
but  why  the  complainant,  if  he  was  a  bona  fide  assignee,  hav- 
ing produced  this  paper  to  show  his  good  faith,  should  omit  to 
do  so,  I  am  at  a  loss  to  understand.  The  production  of  these 
papers,  exhibited  on  the  part  of  the  complainant,  furnishes  no 
evidence  of  his  good  faith  in  this  transaction  :  in  my  judgment 
they  disprove  it.  If  he  was  acting  in  good  faith  he  would  not 
have  relied  on  writings  of  such  a  character,  and  produced  to 
him  by  Stebbins,  the  man  from  whom  he  was  to  take  the  as- 
signment. 

But  it  was  thought  best  that  Van  Hook  should  seem  to  have 
made  inquiries  for  himself,  and  accordingly  he  rides  out  to  Som- 
erville with  Stebbins.  He  stops  at  John  I.  Gaston's;  does  not 
go  to  see  the  property.  Gaston  testifies  that  Van  Hook 
made  no  inquiry  about  the  mortgage  being  given  to  Stebbins 
for  a  debt  due  to  Stebbins  ;  nor  any  inquiry  as  to  the  means  of 
the  company  for  completing  the  works ;  nor  any  inquiry  as  to 
the  water-power,  or  whether  a  lease  for  water  could  be  procur- 
ed ;  nor,  though  on  the  spot,  does  he  make  any  inquiry  for  the 
minutes,  or  as  to  the  action  of  the  board  in  reference  to  the 
giving  of  the  mortgage.  Gaston's  testimony  on  this  part  of  the 
case  is  as  follows  :  "  Mr.  Van  Hook  stopped  at  my  door  and  told 
me  he  had  come  out  to  see  about  loaning  Stebbins  the  money 
on  the  bond  and  mortgage ;  I  told  him  we  wanted  about 
$10,000  to  set  the  property  a-going  and  pay  the  debts,  and 
that  Stebbens  said  that  sum  would  do  it ;  that  I  considered  the 
property  would  be  worth  $20,000  when  in  operation."  "I  told 
him  that  if  he  had  the  money  to  spare,  he  could  not  put  it  out 
more  safely  ;  that  we  were  anxious  to  get  the  money  and  have 
the  works  in  operation  ;  Mr.  Van  Hook  said  he  could  furnish 
the  money  if  he  was  satisfied  with  the  security,  but  that  he  did 
not  wish  to  run  any  risk,  as  he  had  already  lost  some  money 
before  on  loans  made  for  other  persons."  u  Van  Hook  made 
several  inquiries  as  to  the  value  of  the  property."  "I  never 


182  CASES  IN  CHANCERY. 


Van  Hook  v.  Somerville  Manufacturing  Co. 


made  the  least  intimation  to  him,  or  any  other  person,  that  the 
money  was  to  be  raised  for  the  benefit  of  Stebbins."  "  Mr.  Van. 
Hook  did  not  inquire  as  to  the  means  of  the  company  for  com- 
pleting the  works,  but  I  told  him  that  if  we  could  obtain  the 
money  on  the  bond  and  mortgage,  we  would  be  able  to  put  the 
works  in  operation,  and  that  then  the  property  would  be  valua- 
ble." Let  it  be  recollected  here  that  Van  Hook  claims  to  re- 
cover on  this  mortgage  on  the  allegation  that  he  gave  a  deed  for 
real  estate  for  it. 

Again,  at  a  meeting  of  the  water-power  company,  said  to 
have  been  in  June  or  July,  1842,  Stebbins  said  he  could  not 
negotiate  the  mortgage  without  a  lease  of  water  for  the  use  of 
the  Somerville  Manufacturing  Company.  He  had  before  writ- 
ien  to  Gaston,  saying,  "  I  have  found  a  person  who  has 
$10,000  to  loan  at  seven  per  cent,  and  will  let  me  have  it  on 
the  mortgage,  provided  the  property  on  which  it  is  a  lien  is 
worth  $20,000 ;  but  he  objects  until  I  get  some  certainty  for 
water  without  any  question  ;  he  does  not  like  any  chance  of  a 
law-suit ;  it  must  be  a  first  mortgage  ;  this  can  be  got  along 
with,  either  by  paying  up  the  $1500,  or  keeping  it  back,  as  we 
shall  hereafter  agree  upon."  This  letter  was  produced  on  the 
part  of  the  defendants.  It  shows  the  design  of  Stebbins.  The 
mortgage  would  be  of  no  value  without  a  lease  of  water.  Then 
in  June  or  July  he  still  presses  the  water-power  company  for 
a  lease  of  water,  saying  he  could  not  negotiate  the  mortgage 
without  it,  and  it  is  refused  ;  and  it  is  quite  clear  from  the  tes- 
timony, that  without  water  the  property  as  it  then  stood  was  of 
little  value,  compared  with  the  sum  named  in  the  mortgage. 
But  the  effort  to  get  the  lease  fails;  yet  this  failure  to  pro- 
cure water  makes  no  difference  to  the  complainant,  the  alleged 
exchange  proceeds,  notwithstanding,  and  Van  Hook  takes  an 
assignment  of  the  mortgage,  not  paying  money,  which  Gaston 
told  him  they  wanted,  to  put  the  works  in  operation  and  make 
the  property  valuable  and  good  security  for  the  money,  but 
milking  a  deed  of  real  estate  to  Stebbins'  son,  and  telling  us 
by  his  witness,  the  land  broker,  that  Stebbins'  son  made  a 
mortgage  on  that  real  estate  to  a  Mr.  Morgan. 

Again,  the  conversation  between  Van  Hook  and  Gaston,  in 
which  Van  Hook,  while  this  alleged  trade  for  real  property  \vaa 


SEPTEMBER  TERM,  1845.  183 

Van  Hook  v.  Somerville  Manufacturing  Co. 

going  on,  told  Gaston  that  he  had  come  out  to  see  about  loaning 
the  money,  and  that  he  could  furnish  the  money  if  he  was  satis- 
fied with  the  security,  and  in  which  Gaston  told  him  what  is 
before  stated  to  have  been  told  him  by  Gaston  in  that  conversa- 
tion, of  what  the  money  was  wanted  for,  and  how  it  was  to  be 
applied,  shows,  in  my  judgment,  to  the  conscience  of  a  court  of 
equity,  both  suggestio  falsi  and  suppressio  veri,  on  the  part  of 
Van  Hook. 

Can  it  be  believed  that  a  man  acting  in  good  faith,  and  really 
intending  to  give  real  estate  for  this  mortgage,  would  have  made 
such  a  representation  to  Gaston,  or,  on  receiving  the  information 
Gaston  gave-  him,  would  have  omitted  to  inform  Gaston  that 
Stebbins  proposed  to  trade  the  mortgage  for  real  estate  in  New 
York  ?  Can  there  be  a  doubt  that  if  he  had  done  so,  as  he  most 
assuredly  was  required  in  honesty  to  do,  the  company  would 
have  taken  immediate  means  to  protect  themselves  against  the 
faithlessness  and  designs  of'Stebbins? 

This  part  of  the  case  is  consistent  with  all  the  features  of  the 
transaction,  as  well  those  before  examined  as  the  subsequent 
parts  of  it;  and,  instead  of  showing  good  faith  in  Van  Hook, 
it  makes  him  a  party  to  the  fraud  of  Stebbins.  I  cannot  un- 
derstand how  a  man  acting  in  good  faith  could  proceed  with 
the  trade  after  this;  but  I  think  I  can  understand  how  two 
men,  determining  to  proceed  after  this,  should  proceed  as  they 
did — that  is,  have  the  deed  from  Van  Hook  for  the  New  York 
property  made  to  Stebbins'  son,  (who,  it  will  be  recollected  it  is 
testified,  when  a  subpoana  to  appear  as  a  witness  was  handed 
to  him,  read  it,  and  said  he  did  not  know  what  it  was;  that  he 
did  not  know  anything  about  it ;  that  he  did  not  know  Van 
Hook  ;)  and  have  Stebbins'  son  make  a  mortgage  to  one  John 
B.  Morgan.  Again  I  ask,  could  a  man  in  good  faith,  on  the 
production  of  such  papers,  and  after  the  information  he  got 
from  Gaston,  have  bought  and  paid  for  this  mortgage  ?  It 
requires  stronger  faith  in  the  complainant's  simplicity  than  I 
have,  to  believe  it. 

The  closing  scene  of  the  transaction  is  just  such  as  was  to 
be  looked  for.  No  evidence  was  given  to  show  when  the  as- 
signment to  the  complainant,  or  the  deed  to  the  son,  or  the 
mortgage  made  by  the  sou,  was  delivered ;  but  it  appears  that 


184  CASES  IN  CHANCERY. 

Van  Hook  v.  Somerville  Manufacturing  Co. 

an  assignment  of  the  bond  and  mortgage  was  left  by  Stebbins 
in  the  office  of  the  clerk  of  Somerset,  and  recorded  after  the 
9th  of  August,  1842  ;  that,  on  the  8th  of  September,  1842,  the 
report  of  the  master  in  chancery  in  New  York,  of  the  sale  of 
the  New  York  property  to  Van  Hook,  was  confirmed,  unless 
cause  to  the  contrary  should  be  shown  in  eight  days ;  and  that 
the  deed  for  that  property,  from  the  master  in  chancery  in  New 
York  to  Van  Hook,  was  recorded  on  the  19th  of  September, 
1842 ;  and  the  mortgage  from  Stebbins'  son  to  Morgan  is  dated 
August  23d,  1842. 

The  complainant's  witness,  Jones,  would  seem  to  ask  us  to 
suppose  that  young  Mr.  Stebbins,  under  these  circumstances, 
borrowed  $8000  on  the  mortgage  executed  by  him  of  this  New 
York  property,  dated  August  23d.  It  would  have  been  a  relief 
if  Mr.  Morgan,  or  somebody  acquainted  with  this  part  of  the 
transaction,  had  been  examined,  to  tell  us  something  about  this 
mortgage,  when  it  was  delivered,  and  to  whom,  and  what  given 
for.  If  it  was  given  for  the  benefit  of  Jared  N.  Stebbins,  and 
had  no  connection  with  the  transactions  between  Van  Hook 
and  him,  and  Van  Hook  actually  parted  with  the  New  York 
property,  and  has  no  control  over  it  by  means  of  this  mortgage 
to  Morgan,  it  would  have  been  very  easy  for  J.  N.  Stebbins  or 
Van  Hook  to  produce  evidence  to  satisfy  us  of  this  ;  and  Steb- 
bins, as  well  as  Van  Hook,  was  interested  to  do  so.  Instead  of 
this,  and  though  Van  Hook,  under  the  pressure  of  the  case  in 
another  view  of  it,  puts  forward  this  mortgage  from  Stebbins' 
son,  no  account  of  it  is  given,  except  that  Jones,  a  witness  pro- 
duced by  the  complainant,  and  who  produced  a  certified  copy  of 
the  mortgage,  says  that  he  had  seen  it  in  New  York  the  morning 
of  the  day  of  his  examination,  in  the  hands  of  one  Edward  P. 
Clark,  and  that  "  he  could  not  get  the  original  out  of  the  office; 
they  refused  to  let  him  have  it." 

More  light  might  be  thrown  upon  the  subject  by  examining 
Jones'  testimony  in  connection  with  a  fad  of  which  he  did  not 
speak,  and  which  was  not  alluded  to  by  the  counsel  on  either 
side,  for  the  reason,  I  presume,  that  the  voluminous  record  of 
the  proceedings  in  the  chancery  suit  in  New  York  was  not  read 
by  either  of  them  ;  and  that  is,  the  fact  that,  some  time  before 
the  sale  of  the  New  York  property  by  the  sheriff  to  Van  Hook, 


SEPTEMBER  TERM,  1845.  185 

Van  Hook  v.  Soraerville  Manufacturing  Co. 

Bowen,  against  whom  the  decree  in  that  case  was  made,  had  be- 
come insolvent  and  made  an  assignment  for  the  benefit  of  his 
creditors.  But  I  forbear  to  say  more  of  this  matter,  than  that 
we  hear  nothing  of  any  assignment  of  that  decree  either  to  J. 
N.  Stebbins,  or  to  his  son.  In  view  of  this  fact,  this  part  of 
the  case  is  to  be  added  to  the  pretences. 

It  appears  to  me,  that  under  the  proofs  in  the  cause,  irrespec- 
tive of  notice,  the  complainant  is  not  entitled  to  be  considered 
a  bona  fide  purchaser,  and,  therefore,  is  not  entitled  to  the  ap- 
plication of  equitable  considerations  to  relieve  him  from  the 
rule  in  Barrow  v.  Bispham. 

I  am  of  opinion,  further,  that  the  information  he  received 
from  the  president  of  the  company,  was  sufficient  notice  to  take 
from  him  the  character  of  a  bona  fide  purchaser  without  notice, 
if  without  that  information  he  could  have  been  considered  such. 

The  bill  will  be  dismissed. 

Order  accordingly. 

REVERSED,  1  Hal.  Oh.  633. 

CITED  in  Stevens  v.  Post,  1  Beat.  417. 

VOL.  i.  M 


CASES  IN  CHANCERY. 

DEOEMBEE  TERM,  1845. 


JOSEPH  ENGLE  v.  ABEAHAM   HAINES  AND  WIFE,  SAMUEL 
EOSS  AND  OTHEES. 

1.  If  a  mortgagor,  subsequently  to  the  mortgage,  sells  and  conveys  a  part 
of  the  mortgaged  premises,  an  equity  arises  in  favor  of  the  purchaser,  to  have 
the  part  which  remains  in  the  mortgagor  first  sold  for  or  towards  the  payment 
of  the  mortgage. 

2.  But  if  the  purchaser  agrees  with  the  mortgagor  that  the  part  he  buys 
shall  be  subject  to  the  mortgage,  and  that  the  amount  due  on  the  mortgage 
shall  be  a  part  of  the  consideration  he  is  to  pay,  equity  will  not  interpose  to 
subject  the  part  of  the  mortgaged  premises  remaining  in  the  mortgagor  to  be 
first  sold. 

3.  And  a  subsequent  grantee  of  such  purchaser  from  the  mortgagor,  with 
notice,  has  no  better  equity  against  the  mortgagor. 


On  the  25th  of  March,  1821,  Abraham  Haines  gave  his 
bond  of  that  date  to  Stacy  Haines,  conditioned  for  the  payment 
of  $2000,  with  interest,  in  three  years ;  and  on  the  same  day, 
with  Agnes,  his  wife,  executed  to  Stacy  Haines  a  mortgage  of 
the  premises  described  in  the  bill,  to  secure  the  payment  of  the 
bond.  On  the  3d  of  May,  1823,  Stacy  Haines  transferred  the 
bond  and  mortgage  to  one  Hiuchman  Haines  ;  and  on  the  26th 
of  October,  1841,  Hinchman  Haines  transferred  them  to  the 
complainant.  On  the  19th  of  March,  1839,  Abraham  Haines 
and  his  wife  sold  and  conveyed  a  certain  portion  of  the  mort- 
gaged premises  to  one  Barclay  Haines;  and  Barclay  Haines, 
with  his  wife,  on  the  3d  of  April,  1839,  conveyed  the  same  to 
John  W.  Stilts;  and  on  the  1st  of  July,  1840,  Stitts  conveyed 

186 


DECEMBER  TERM,  1845.  187 

Engle  v.  1 1. 'linos  et  al. 

it  to  Charles  and  John  White,  and  they,  with  the  wife  of  said 
John,  on  the  llth  of  June,  1841,  conveyed  it  to  the  defendant, 
Samuel  Ross.  The  bill  charges  that  all  these  conveyances  were 
made  subsequent  to,  and  with  full  knowledge  of,  the  said  mort- 
gage ;  and  prays  a  sale  of  the  mortgaged  premises  in  satisfaction 
of  the  mortgage. 

The  answer  of  Abraham  Haines,  the  mortgagor,  states  that 
the  conveyance,  mentioned  in  the  bill,  made  by  him  to  Barclay 
Haines,  of  a  portion  of  the  mortgaged  premises,  was  made  in 
consideration  of  $1500;  that  $1000  of  that  sum  was  paid  to 
him  by  the  said  Barclay,  and  that,  at  the  time  of  the  said  con- 
veyance by  him  to  Barclay,  it  was  agreed  between  them  that 
the  portion  so  conveyed  to  Barclay  was  to  be  subject  to  the 
payment  of  $500,  due  on  the  said  mortgage  on  the  whole 
premises,  with  interest  thereon  from  March  25th,  1839,  in  re- 
lief of  the  residue  of  the  mortgaged  premises.  That  the  sale 
of  the  said  portion  by  Barclay  to  Stitts  was  made  with  a  full 
knowledge,  on  the  part  of  Stitts,  of  the  said  agreement  between 
him,  the  mortgagor,  and  Barclay  Haines ;  and  that  Stitts,  at  the 
time  of  said  sale  to  him,  gave  to  Barclay  Haines  a  writing,  of 
which  the  following  is  a  copy  :  "  I,  John  W.  Stitts,  have 
bought  of  Barclay  Haines  a  certain  tract  of  land,  of  about 
twenty-four  acres,  subject  to  a  mortgage  of  $500,  held  by 
Hinchrnan  Haines,  and  to  pay  the  interest  up  from  the*7th  of 
March  last;  said  tract  is  situate  in  Evesham  township,  which 
said  Barclay  bought  of  his  father,  Abraham  Haines."  This 
answer  then  states  that  the  Whites,  at  the  time  of  the  convey- 
ance of  this  portion  by  Stitts  to  them,  had  notice  of  this  agree- 
ment ;  and  that  Ross,  at  the  time  of  the  conveyance  of  this 
portion  by  the  Whites  to  him,  had  notice  of  the  said  agree- 
ment, and  that  the  portion  conveyed  to  him  was  alone  charge- 
able for  the  said  $500.  The  answer  submits  that  this  portion, 
so  conveyed  to  and  now  held  by  Ross,  should  be  first  sold,  be- 
cause each  of  the  subsequent  purchasers  had  full  notice,  &c. 

The  answer  of  Samuel  Ross  was  put  in  before  the  answer  of 
Abraham  Haines,  and  contains  no  denial  of  notice. 

The  testimony  is  as  follows  : 

The  writing  mentioned  in  the  answer  of  Abraham  Haines, 


188  OASES  IN  CHANCERY. 

Engle  v.  Haines  et  al. 

as  given  by  John  W.  Stilts  to  Barclay  Haines,  is  exhibited  and 
marked  Exhibit  A  on  the  part  of  Abraham  Haines. 

Barclay  Haines,  for  the  defendant  Abraham  Haines,  testifies 
that  on  the  19th  of  March,  1839,  he  bought  of  his  father, 
Abraham  Haines,  the  tract  of  about  twenty-four  acres,  men- 
tioned in  the  answer  of  Abraham  Haines;  that  at  the  time  he 
bought  it,  he  understood  there  was  a  mortgage  on  it  with  other 
property  of  Abraham  Haines,  then  held  by  Hinchman  Haines; 
and  that  the  amount  due  on  the  mortgage  was  $500,  with  inter- 
est from  March  25th,  1839 ;  and  that  the  balance  of  the 
mortgage  had  all  been  paid  up;  he  was  to  give  $1500  for  the 
tract  he  bought — $1000  in  trade  and  $500  by  paying  the  bal- 
ance due  on  the  mortgage ;  there  was  no  written  agreement 
between  him  and  his  father ;  it  was  expressly  agreed  between 
them  that  this  land  should  be  liable  for  the  $500  due  on  the 
mortgage ;  when  he  sold  to  Stitts,  he  gave  Stitts  notice  that 
this  tract  was  liable  for  the  money  due  on  the  mortgage,  and 
was  to  be  alone  liable  for  it ;  there  was  a  written  agreement 
between  him  and  Stitts  in  reference  to  that  sale ;  the  agree- 
ment at  first  was  verbal,  but  was  afterwards  reduced  to  writing 
and  signed  by  Stitts,  at  the  time  of  the  delivery  of  tl>e  deed. 
The  paper  marked  Exhibit  A  on  the  part  of  Abraham  Haines, 
was  here  shown  to  the  witness,  and  he  said  that  it  was  the 
agreement  referred  to ;  that  he  saw  Stitts  sign  it ;  that  it  is  wit- 
nessed by  J.  R.  Value,  who  at  the  time  was  a  clerk  for  Stitts ; 
he  does  not  think  that  Value  lives  in  this  state;  he  lived  in 
Pennsylvania  at  the  time  of  the  execution  of  the  paper;  has 
never  known  him  to  be  in  Jersey  since  ;  Stitts  was  to  give  him, 
$1600  for  the  tract — $100  in  cash,  $10CO  in  trade,  and  the 
$500  due  on  the  mortgage,  which  was  a  part  of  the  considera- 
tion ;  Stitts  was  to  pay  the  interest  from  March  7th,  1839; 
he  knows  Charles  H.  and  John  F.  White;  they  resided  in 
Philadelphia  at  that  time,  and  do  still ;  he  was  at  his  father's 
when  one  of  them  and  a  Mr.  Curtis,  a  scrivener,  whose  office 
was  in  Arch  street,  Philadelphia,  drove  up  and  inquired  for 
Abraham  Haines;  they  had  a  conversation  with  him  in  wit- 
ness' presence ;  they  wished  to  know  of  his  father  whether 
this  tract  was  free  and  clear,  or  encumbered  ;  he  means  the 
twenty-four  acres  spokeu  of;  his  father  told  them  it  was  en- 


DECEMBER  TERM,  1845.  189 

Engle  v.  Raines  et  al. 

cumbered  by  that  $500  mortgage;  Curtis  then  said  to  While, 
that  man  Stilts  would  have  cheated  you,  perhaps,  if  you  had 
not  come  up;  his  father  told  them  that  I  had  sold  Stilts  that 
property,  and  that  I  had  an  agreement  from  Stilts,  showing 
about  that  mortgage;  they  then  asked  me  if  I  had  that  agree- 
ment; I  told  them  I  had,  and  produced  it,  and  they  both  read 
it;  Curtis  then  said  to  White,  this  shows  Ihe  Ihing  exactly — 
that  there  is  a  mortgage  on  that  properly  for  $500;  While  re- 
quested Curtis  to  take  a  copy  of  the  agreement,  which  he  did ; 
one  of  them,  he  thinks  White,  then  asked  who  held  the  mort- 
gage; I  told  them  Hinehman  Haines;  they  asked  if  I  knew 
whether  that  money,  the  $500,  was  wanted ;  I  replied,  I  did 
not  know;  White  asked  if  Hinehman  Haines  lived  far  distant; 
I  told  them  the  distance;  they  asked  me  to  go  there  with  them, 
to  see  him  ;  we  found  him,  and  I  introduced  him  to  those  gen- 
tlemen; White  asked  him  if  he  held  a  mortgage  on  the  prop- 
erty, describing  what  property ;  he  said  he  did ;  While  asked 
him  if  he  wanled  ihe  money;  he  said  he  would  like  the  money 
paid  off,  as  there  were  so  many  endorsements  on  the  bond — 
that  it  was  covered  with  them ;  White  told  him  he  expected  lo 
buy  ihe  property,  and  if  he  did,  he  would  like  to  make  some 
arrangement  about  the  mortgage — that  if  required,  he  would 
give  a  new  bond  and  mortgage ;  that  he  would  pay  the  interest 
up  punctually,  and  pay  all  the  back  interest,  and  that  if  he  got 
the  property,  he  thought  he  would  be  able  to  pay  off  the  prin- 
cipal within  a  year;  on  ihese  terms,  Hinehman  Haines  con- 
sented to  let  the  mortgage  lay  for  one  year;  While  then  asked 
Hinehman  where  he  could  send  the  interest  money;  Hinehman 
told  him  to  the  post-office  at  Marllou;  they  then  parted;  he 
does  not  remember  which  one  of  the  Whites  it  was;  it  was  one 
of  them ;  they  are  in  partnership  togelher ;  he  has  a  slight 
acquaintance  with  Samuel  Ross,  one  of  the  defendants  in  this 
case;  he  had  a  conversation  with  Ross,  previous  lo  his  pur- 
chasing ihis  property;  R.  W.  Howell,  of  Camden,  counsel  of 
Ross  al  lhat  time,  called  to  me  as  I  was  passing  his  office,  and 
wished  me  to  tell  him  what  I  knew  about  the  title  of  this  prop- 
erly which  Stilts  bought  of  me,  and  how  it  was  situated  as 
respected  the  encumbrances;  he  said  Ross,  a  client  of  his,  was 
about  buying  it;  I  told  him  how  it  was  situated,  and  that  it 


190  CASES  IN  CHANCERY. 

Engle  v.  Haines  et  al. 

was  liable  for  this  $500,  and  alone  liable;  he  then  asked  me 
to  go  with  him  to  see  Ross;  I  went  with  him,  and  saw  .Ross,  at 
his  factory  in  Camden;  I  then  told  Ross  that  this  property  was 
subject  to  the  payment  of  $500,  as  I  had  told  his  counsel 
before  ;  I  told  Ross,  at  that  time,  what  the  agreement  was  be- 
tween Abraham  Haines  and  myself,  when  I  bought  the  prop- 
erty, in  the  same  manner  I  have  stated  in  this  examination,  and 
also  that  I  had  sold  it  to  Stitts  subject  to  the  mortgage,  and  that 
I  had  informed  one  of  the  Mr.  Whites  of  its  being  liable  for  the 
said  mortgage;  I  do  not  remember,  exactly,  the  reply  of  Ross; 
he,  or  his  counsel,  said  they  were  much  obliged  for  the  infor- 
mation ;  Ross  and  Mr.  Howell  were  both  present  at  the  conver- 
sation. 

Richard  W.  Howell,  sworn  on  the  part,  of  the  defendant 
Samuel  Ross,  testifies  that  he  had  a  conversation  with  Barclay 
Haiues,  in  his  (Howell's)  office,  in  relation  to  some  part  of  the 
property  bought  by  Ross  of  the  Messrs.  White ;  his  recollection 
is,  that  a  short  time  before  the  June  Term,  1841,  of  the  Glou- 
cester Court,  Barclay  Haines  called  at  his  office  to  retain  him  in 
a  suit;  after  arranging  the  business,  witness  mentioned  to  him 
that  he  had  seen  his  name  in  connection  with  some  property 
that  Mr.  Ross  had  either  purchased  or  was  in  negotiation  for 
with  the  Whites,  and  that  it  might  be  important  for  Mr.  Ross 
to  possess  any  information  he  might  have  in  relation  to  it ; 
Haines  said  he  would  accompany  witness  in  calling  on  Ross; 
they  found  Ross  at  his  factory  in  Camden  ;  witness'  impres- 
sion is,  that  Ross  was  just  about  starting  to  visit  this  farm  he 
either  had  purchased  or  contracted  for  with  the  Whites ;  wit- 
ness mentioned  to  Mr.  Ross  that  this  was  Mr.  Haines,  and  stated 
that  Haines  knew  something  about  the  property,  or  some  part 
of  it ;  Haines  went  into  an  explanation  of  something  relating 
to  the  property,  which,  at  the  time,  witness  thought  might  be 
important  for  Ross  to  know,  but  the  particulars  of  which  he 
does  not  recollect ;  witness  had  been  spoken  to  by  Ross  before 
then,  to  draw  a  deed  from  the  Whites  to  him ;  he  does  not 
recollect  whether  the  conversation  was  before  or  after  June  llth, 
1841 ;  he  remembers  that  Ross  did  not  seem  particularly  pleas- 
ed, and  rather  cut  short  the  explanation  of  Haines,  by  remark- 
ing that  he  was  entirely  satisfied ;  the  substance  of  it  waa 


DECEMBER  TERM,  1845.  191 

Engle  v.  Haine&et  al. 

this  :  that  the  Whites  were  honorable  men ;  that  he  had  noth- 
ing to  fear  from  them,  or  that  they  would  do  what  was  right 
in  the  matter.  [To  a  question  here  put  by  the  counsel  of  Mr. 
Ross,  whether,  from  what  passed  in  the  conversation  between 
Ross  and  Haines,  the  witness  understood  that  Ross  had  already 
purchased  the  property  from  the  Whites,  the  witness  says  his 
impression  certainly  is  that  the  negotiation  was  settled  at  that 
time.] 

Cross-examined. — He  cannot  recollect  whether  he  drew  the 
deed  before  or  after  this  conversation  with  Ross;  his  impression 
is,  that  the  papers  connected  with  the  property  were  with  him 
at  this  time,  and  had  been  for  some  time  ;  he  drew  the  deed 
that  was  executed ;  he  drew  another  deed,  which  was  not  exe- 
cuted ;  there  were  some  parts  of  it,  cannot  say  what,  but 
connected  with  the  warranty,  which  he  does  not  recollect,  that 
was  objected  to  by  one  of  the  Whites;  it  might  have  been  about 
the  $500  mortgage,  or  it  might  not;  he  cannot  recollect  posi- 
tively. [The  deed  which  was  executed  contains  only  a  cove- 
nant of  warranty,  and  not  a  covenant  against  encumbrances.] 
The  conversation  he  had  with  Haines,  before  going  to  Mr.  Ross, 
was  about  an  encumbrance  on  the  property,  or  some  part  of  it, 
the  particulars  of  which  he  does  not  recollect;  it  was  Mr. 
Haines'  knowledge  of  the  matter,  whatever  it  was,  that  witness 
desired  Ross  to  possess ;  he  presumes  Haiues  made  the  same 
statement  to  Ross  which  he  had  made  to  him,  in  substance,  in 
relation  to  this  matter,  whatever  it  was,  but  Mr.  Ross  shortened 
the  conversation  ;  it  struck  witness  at  the  moment  that  Ross 
was  not  particularly  desirous  of  hearing  Mr.  Haines;  his  car- 
riage was  waiting  for  him  at  the  time;  witness  cannot  say 
whether  at  this  time  the  deed  was  executed  or  not ;  he  believes 
he  should  have  taken  Haines  to  Mr.  Ross  whether  the  deed  was 
executed  or  not. 

The  cause  was  heard  on  the  pleadings  and  proofs. 

Siratton,  for  the  complainant. 

Ten  Eyclc,  for  the  defendant  Abraham  Haiues. 

Jeffers,  for  the  defendant  Samuel  Ross. 


192  CASES  IN  CHANCERY. 

Engle  v.  Hai»es  et  al. 

Mr.  Ten  Eyck  cited  4  Kent*  Com.  173, 174,  179  ;  1  Johns. 
Ch.  Rep.  301,  303;  2  Pow.  on  Mortgages  553,  and  notes  576, 
577,  note  1,  561,  note  6,  562. 

-Mr.  Jejfers  cited  Saxton's  Ch.  Rep.  413  ;  1  Green's  Ch.  Rep. 
439,  447,  448. 

THE  CHANCELLOR.  Under  the  testimony  in  this  cause,  the 
twenty-four  acre  tract  is  first  chargeable  to  the  extent  of  $500 
and  the  interest  due  on  it  from  the  date  of  the  conveyance  from 
Abraham  Haiues  to  Barclay  Haines.  If  a  mortgagor,  subse- 
quently to  the  mortgage,  sells  and  conveys  a  part  of  the  mort- 
gaged premises,  an  equity  arises  in  favor  of  the  purchaser,  to 
have  that  part  of  the  mortgaged  premises  which  remains  in 
the  mortgagor,  first  sold  for  or  towards  the  payment  of  the  mort- 
gage; but  if  such  subsequent  purchaser  agrees  with  the  mort- 
gagor that  the  part  he  buys  shall  be  subject  to  the  mortgage, 
and  that  the  amount  due  on  the  mortgage  shall  be  a  part  of  the 
consideration  for  the  portion  he  buys,  equity  will  no»t  interpose 
to  protect  him,  by  subjecting  the  part  of  the  mortgaged  prem- 
ises remaining  in  the  mortgagor  to  be  first  sold.  A  subsequent 
purchaser  of  such  portion  from  the  grantee  of  the  mortgagor, 
with  notice  of  the  facts,  has  no  better  equity  against  the  mort- 
gagor than  the  first  purchaser. 

I  cannot,  under  the  circumstances,  direct  the  portion  remain- 
ing in  the  mortgagor  to  be  first  sold. 

AFFIRMED,  1  Hoist.  Ch.  632. 

CITED  in  Hoy  ?.  BramhaU,  4  C.  E.  Or.  570. 


DECEMBER  TERM,  1845.  193 


Ware  v.  Ex'rs  of  Cook. 


JOSEPH  C.  WARE  v.  THE  EXECUTORS  OF  MARY  COOK. 

The  will  directs  in  substance,  that  11500  be  put  at  interest  by  the  executors, 
and  the  interest  be  added  to  the  principal  from  time  to  time,  or  the  interest 
put  at  interest,  and  that  one-half  of  said  sum  and  of  the  interest  which  may 
hav.e  accrued  when  M.  L.  C.  attains  twenty-one,  be  paid  to  her,  and  that  the 
other  half  be  paid  to  J.  C.  when  he  attains  twenty-one  :  and  that  if  either  die 
under  age,  leaving  issue,  his  share  be  paid  to  his  children  ;  and  if  either  die 
under  twenty-one  without  leaving  issue,  the  will  gives  the  whole  of  said  share 
and  interest  to  the  other,  or  to  the  children  which  the  other,  if  dead,  may 
have  left.  Held,  that  on  the  death  of  one  under  twenty-one,  leaving  issue,  the 
issue  are  entitled  to  receive  the  half;  and  further,  that  the  time  of  payment 
in  that  event  is  not  postpone^  to  the  time  at  which  the  deceased  parent  would 
have  attained  twenty-one,  if  he  had  lived. 


The  bill  states  that,  on  or  about  March  22d,  1839,  Mary 
Cook,  since  deceased,  made  her  will,  by  which  she  directed, 
among  other  things,  as  follows :  "  10th.  I  order  the  sum  of 
$1500  to  be  put  at  interest  by  my  executors,  and  the  interest 
added  to  the  principal  from  time  to  time,  or  the  interest  put  at 
interest ;  and  the  one-half  of  said  sum,  with  one-half  of  the 
interest  which  may  have  accrued  when  my  granddaughter, 
Mary  Louisa  Cook,  arrives  at  the  age  of  twenty-one  years,  I 
order  to  be  paid  to  her;  or,  if  she  dies  before  that  time,  leaving 
issue  her  surviving,  I  order  her  said  share  to  be  paid  to  her  child 
or  childen  ;  and  the  remaining  half  of  the  said  money,  with 
the  remainder  of  the  interest,  I  order  to  be  paid  to  my  grand- 
son, Joseph  Cook,  when  he  arrives  at  the  age  of  twenty-one 
years;  but  if  he  dies  before  he  arrives  at  the  age  aforesaid, 
leaving  issue,  I  order  his  said  share  to  be  paid  to  his  child  or 
children  ;  and  if  either  the  said  Mary  Louisa  or  the  said  Joseph 
die  before  arriving  at  the  age  aforesaid,  and  without  leaving 
issue,  then  I  give  the  whole  of  the  said  sum  and  interest  to  the 
survivor  of  them  ;  or  if  one  of  them  die  before  arriving  of  age, 
and  leave  issue,  and  the  other  die  before  arriving  of  age,  and 
without  issue  him  or  her  surviving,  then  I  give  the  whole  of 
said  moneys  to  the  child  or  children  of  the  one  so  dying  and 
leaving  issue." 


194  CASES  IN  CHANCERY. 

Ware  v.  Ex'rs  of  Cook. 

"  12th.  All  the  residue  of  my  estate,  after  the  payment  of 
my  debts  and  expenses,  and  the  legacies  herein  before  devised, 
I  give  to  my  grandchildren  Sarah  Richman,  Mary  Louisa  Cook, 
Joseph  Cook,  and  Mary  Cook,  to  be  equally  divided  between 
them,  each  one  to  receive  his  or  her  share  thereof,  as  him  or  her 
attains  the  age  of  twenty-one  years  ;  and  if  any  one  of  them 
dies  before  him  or  her  attains  the  age  of  twenty-one  years,  leav- 
ing issue  him  or  her  surviving,  then  to  the  issue  of  him  or  her 
so  dying,  I  give  the  share  which  the  parent  or  parents  of  st*ch 
issue  would  have  been  entitled  ^to  under  this  devise ;  but  if  any 
one  or  more  of  my  said  grandchildren  die  before  attaining  the 
age  of  twenty-one  years,  and  without  issue  surviving  him  or 
her,  then  I  give  his  or  her  share  of  this  devise  to  the  survivors 
and  to  the  issue  of  him  or  her  dying  leaving  issue,  the  issue  of 
any  one  to  have  the  same  the  parent  of  %uch  child  would  have 
been  entitled  to  under  the  devise." 

That,  on  or  about  the  7th  of  January,  1841,  the  executors 
proved  the  will,  and  by  virtue  thereof  possessed  themselves  of 
all  the  estate  that  was  of  the  testatrix,  amounting  to  $10,000 
and  upwards.  That,  on  or  about  June  9th,  1842,  the  said 
Mary  Louisa  Cook  was  married  to  Rich-ard  M.  Ware;  that  tin 
said  Mary  Louisa  afterwards,  on  or  about  March  4th,  18444, 
died,  not  having  yet  attained  the  age  of  twenty-one  years,  leav- 
ing the  complainant,  her  son  and  only  child,  her  surviving,  who 
is  an  infant  of  about  ten  mouths  old.  The  bill  is  filed  by  the 
infant,  by  his  guardian,  Richard  M.  Ware,  his  father,  and  prays 
that  the  executors  may  pay  the  one-half  of  the  said  $1500,  and 
of  the  interest  that  has  accrued  thereon,  and  also  the  one-fourth 
part  of  the  residue  of  the  estate,  together  with  the  interest  that 
has  accrued  thereon. 

To  this  bill  a  general  demurrer  was  filed  July  10th,  1844. 

Mr.  Jejfers,  in  support  of  the  demurrer,  contended,  First, 
that,  under  the  provisions  of  this  will,  after  the  death  of  Mary 
Louisa  Cook  under  twenty-one  years,  no  interest  could  ever 
vest  in  the  complainant.  Second,  that,  by  the  will,  the  money 
was  not  payable  until  the  time  at  which  Mary  Louisa  Cook 
would  have  attained  twenty-one  years  of  age,  if  she  had  lived, 
and  that  the  bill  does  not  show  that  the  time  had  arrived. 


DECEMBER  TERM,  1845.  195 


Ware  v.  Ex'rs  of  Cook. 


He  cited  3  Atkyns  101,  102,  114,  427,  428;  3  Vesey  10,  12. 

P.  D.  Vroom,  contra,  cited  3  Atk.  645 ;  2  Brown's  Ch.  R.  4, 
305;  2  Meriv.  386;  6  Vesey  239;  7  Ibid.  421;  1  Roper  on 
Leg.  387,  583,  584;  3  Vesey  15;  4m6fer  588;  2  P.  W.  336, 
478;  1  Eq.  Ca.  Ab.  299;  2  Fernon  94,  199,  283. 

THE  CHANCELLOR.  The  bequest  made  in  each  of  the 
clauses,  gives,  I  think,  a  vested  interest.  The  will  only  post- 
pones, the  time  of  payment.  But  in  reference  to  both  clauses 
there  is  a  gift  over  to  the  issue  of  the  legatee  dying  before 
twenty-one,  leaving  issue.  The  will  gives  half,  with  the  in- 
terest thereon,  to  one,  when  she  arrives  at  twenty-one,  and  half, 
with  the  interest  thereon,  to  the  other,  when  he  arrives  at  twenty- 
one;  and  provides  that  if  either  die  under  twenty-one,  leaving 
children,  the  half  shall  be  paid  to  his  or  her  children  ;  and  that 
if  either  die  under  twenty-one,  without  leaving  issue,  the  other, 
or  the  children  he  or  she,  if  dead,  may  have  left,  shall  have  the 
whole. 

If 'one  die  uqder  age  leaving  children,  does  this  will  require 
us  to  say  that  these  children  shall  have  nothing  unless  and  until 
they  live  to  the  time  when  their  deceased  parent  would  have  at- 
tained twenty-one,  if  he  or  she  had  lived  ?  I  see  nothing  in 
the  language  of  the  will,  or  in  the  nature  of  its  provisions,  re- 
quiring or  authorizing  such  a  construction. 

The  demurrer  will  be  overruled. 

Order  accordingly. 


196  CASES   IN  CHANCERY. 


Pierson  and  Gruet  v.  Ryerson. 


ELIJAH   C.   PIERSON   AND   EDWARD   GRUET  v.  VAN  BUREN 

RYERSON. 

1.  A  mortgagor,  in  1829,  conveyed  a  part  of  the  mortgaged  premises  to  C. 
The  mortgagee,  on  the  same  day,  released  this  part  to  C,  and  on  the  next  day 
assigned  the  mortgage  to  D.     On  a  bill  filed  by  D,  in  1844,  a  decree  was  made 
for  the  sale  of  all  the  land  described  in  the  mortgage.     C  was  made  a  party 
defendant  with  the  mortgagor,  but  did  not  appear,  knowing  that  D  had  notice 
of  the  release.     At  the  sheriff's  sale  all  the  land  described  in  the  mortgage 
was  set  up  and  struck  off  to  D,  and  the  sheriff,  in  pursuance  of  an  arrange- 
ment between  D  and  E,  made  the  deed  to  E.     E  brought  ejectment  against  C 
for  the  part  so  conveyed  and  released  to  him.     On  a  bill  filed  by  C  against  E, 
Btating  these  facts,  and  that  D,  when  he  took  the  assignment  of  the  mortgage, 
had  notice  of  the  release,  and  that  E,  before  he  took  the  sheriff's  deed,  had 
notice  of  the  release,  a  preliminary  injunction  was  granted   restraining  E 
from  prosecuting  the  ejectment. 

2.  A  denial  on  information  and  belief  of  notice  to  another  is  not  sufficient 
to  dissolve  an  injunction. 

3.  The  denial  of  two  allegations  conjunctively  is  not  a  denial  of  each. 

4.  A  release  of  a  part  of  mortgaged  premises  had  been  recorded.     An  alle- 
gation of  the  defendant  that  he  never  heard  of  the  release  till  after  he  bought, 
held,  under  the  circumstances,  not  to  be  a  sufficient  denial  of  knowledge  of 
the  release. 


The  bill  states  that  on  the  28th  of  May,  1828,  Richeson 
Buckbee  mortgaged  to  Aaron  Peck  the  tract  of  land  first  de- 
scribed in  the  bill,  to  secure  $1700.  That  on  the  28th  of  April, 
1829,  Buckbee,  with  his  wife,  conveyed  a  p?rt  of  the  said  tract 
(describing  the  part,)  to  the  complainant  Pierson.  That  on  the 
same  day,  Peck,  with  the  knowledge  and  consent  of  Buckbee, 
released  from  the  lien  of  the  mortgage  the  part  so  conveyed  by 
Buckbee  and  wife  to  Pierson.  That  on  the  29th  of  April,  1829, 
and  after  the  making  of  the  release,  Peck  transferred  the  mort- 
gage to  Charles  R.  Akers,  with  full  notice  to  him  of  the  said 
release.  That  the  conveyance  by  Buckbee  and  wife  to  Pierson, 
and  the  release  from  Peck  to  Pierson,  were  recorded  April  30th, 
1829.  That  the  part  conveyed  by  Buckbee  and  wife  to  Pierson 
was  conveyed  to  Pierson  in  trust  fur  Peck,  though  the  deed  waa 
absolute  in  terms,  the  consideration  of  the  conveyance  to  Pier- 


DECEMBER  TERM,  1845.  197 

Piereon  and  Gruet  v.  Ryerson. 

son  having  been  paid  by  Peck;  and  that  Pierson  never  paid  or 
assumed  to  pay  any  consideration  for  the  said  release.  That 
Peck,  having  such  interest  in  the  part  released,  and  supposing 
he  had  a  right  to  convey  it,  did,  by  deeds  executed  by  him  and 
his  wife,  convey  the  part  so  released,  in  divers  parcels,  to  di- 
vers persons,  in  the  year  1829.  That  under  said  conveyances 
and  divers  mesne  conveyances  subsequent  thereto,  the  complain- 
ant Pierson,  on  the  4th  of  February,  1835,  became  and  is  now 
seized  in  fee,  in  his  own  right,  of  a  part  of  the  released  prem- 
ises, (describing  the  part,)  and  the  complainant  Gruet,  on  the 
22d  of  July,  1843,  became  and  is  now  seized  in  fee,  in  his 
own  right,  of  another  part  of  the  released  premises,  (describing 
the  part.)  That  in  order  to  remove  any  doubt  or  embarrass- 
ment as  to  the  title  of  Gruet,  and  to  carry  out  the  intention  of 
Peck,  Pierson,  at  the  request  of  Gruet,  and  with  the  concur- 
rence of  Peck,  on  the  13th  of  June,  1845,  executed  and  deliv- 
ered to  Gruet  a  deed,  of  that  date,  conveying  to  him  the  part 
of  the  released  premises  which  had  been  conveyed  to  him  as 
aforesaid.  That  on  the  28th  of  April,  1829,  after  the  convey- 
ance and  release  aforesaid,  Buckbee  and  his  wife,  further  to 
secure  the  moneys  mentioned  in  the  said  mortgage,  made  and 
delivered  to  Peck  another  mortgage  of  another  lot  of  one  acre 
and  forty-eight  hundredths.  That  on  the  8th  of  November, 
1830,  Buckbee  and  wife  made  and  delivered  to  Pierson  a  mort- 
gage of  a  tract  of  three  acres,  to  secure  the  payment  of  $750, 
with  interest,  on  a  note  given  by  Buckbee  to  Pierson  ;  this  last 
tract  embracing  the  lot  described  in  the  last-mentioned  mort- 
gage from  Buckbee  and  wife  and  a  part  of  so  much  of  the  tract 
first  described  in  the  bill  as  lies  west  of  Mechanic  street  in 
Orange.  That  on  the  8th  of  April,  Pierson  assigned  to  Akers 
the  mortgage  and  note  so  made  by  Buckbee  to  him.  That  af- 
ter the  said  conveyance  and  release  to  Pierson,  and  immediately 
thereupon,  Pierson,  with  the  concurrence  of  Peck,  laid  out  and 
dedicated  to  public  use  as  a  street,  a  strip  of  land,  part  of  said 
released  premises,  extending  the  whole  depth  thereof  from  the 
road  leading  through  Orange  to  Newark,  and  occupying  the 
westerly  side  of  said  released  premises,  in  width  fifty  feet ;  and 
that  Peck  thereupon  conveyed  the  lot  of  which  Gruet  is  so  sei- 
zed, as  binding  on  the  said  street  called  Mechanic  street,  so  laid 


198  CASES  IN  CHANCERY. 

Pierson  and  Gruet  v.  Ryerson. 

out  as  aforesaid  ;  which  street  has  been  enjoyed  by  the  public 
from  about  April  28th,  1829,  to  this  time,  without  interruption 
or  dispute,  though  it  has  never  been  regularly  laid  out  accord- 
ing to  law  by  surveyors  of  the  highways.  That  Ryerson,  the 
defendant,  threatens  and  intends  to  take  possession  of  the  said 
strip  so  dedicated  for  a  street,  or  to  convey  it  or  bring  ejectment 
for  it,  so  as  to  deprive  the  complainants  of  their  rights  therein 
and  of  the  use  thereof.  That  on  the  3d  of  January,  1844, 
Akers  filed  his  bill  to  foreclose  the  said  mortgage ;  that  before 
doing  so,  he  repeatedly  stated  to  Peck  and  the  complainants,  or 
some  of  them,  that  he  had  no  claim  upon  or  interest  in  the 
land  so  conveyed  and  released  to  Pierson,  and  that  it  was  fully 
released  from  the  mortgage.  That  Akers'  said  bill,  through 
inadvertence  or  otherwise,  omitted  to  state  or  admit  the  said  re- 
lease. That  Pierson  was  made  a  defendant  in  said  suit,  but 
Gruet  was  not.  That  Pierson,  knowing  of  the  release  and  that 
Akers  had  knowledge  of  it  and  notice  of"  it  as  aforesaid,  and 
having  confidence  that  Akers  would  not  ask  a  decree  for  the 
sale  of  the  part  so  released,  and  being  a  proper  party  defendant 
in  the  foreclosure  suit  for  reasons  other  than  his  interest  in  the 
said  released  part,  did  not  appear  to  the  said  suit.  That  a  de- 
cree pro  eonfesso  was  taken  for  the  sale  of  all  the  lands  origin- 
ally embraced  in  the  said  mortgage  from  Buckee  and  wife  to 
Peck.  That  the  sheriff  of  Essex,  by  virtue  of  an  execution 
issued  on  said  decree,  advertised  all  the  said  lands,  and  on  or 
about  the  1st  of  August,  1844,  struck  off  the  same  to  Buckbee. 
That  Buckbee,  being  subsequently  advised  that  the  taking  a 
deed  to  him  under  that  decree  and  sale  would  not  defeat  the 
rights  of  the  complainants  in  this  bill  in  the  parts  released,  in- 
asmuch as  he  had  conveyed  that  part  to  Pierson  as  aforesaid, 
aa  arrangement  was  made,  or  it  so  transpired,  that  the  lands 
were  again  advertised  by  the  sheriff  under  the  said  execution, 
and  on  or  about  the  23d  of  December,  1844,  were  again  sold, 
and  at  this  sale  were  struck  off  to  Akers.  That  afterwards, 
on  or  about  the  10th  of  January,  1845,  in  pursuance  of  eorae 
arrangement  made  by  and  between  Akers  and  the  defendant, 
the  sheriff  executed  and  delivered  a  deed  therefor  to  the  defen- 
dant, which,  though  it  may  bear  date  the  said  10th  of  January, 
1845,  was  not  actually  delivered  till  about  the  10th  of  March, 


DECEMBER  TERM,  1815.  199 

Pierson  and  Gruet  v.  Ryerson. 

1845.  That  immediately  on  being  informed  that  the  decree 
embraced  the  part  released,  and  that  execution  was  issued 
thereon  and  a  sale  was  advertised,  the  complainants  in  this  bill, 
or  some  person  in  their  behalf,  applied  to  Akers  and  remon- 
strated with  him  against  his  proceeding  to  sell  the  part  released  ; 
and  that  thereupon  Akers  expressly  disclaimed  any  right  or  in- 
terest in  the  part  released,  and  any  intention  or  expectation  of 
disturbing  the  complainants  in  respect  to  the  same,  by  reason  of 
the  said  decree  and  execution,  or  any  sale  by  virtue  thereof. 
That  the  complainants,  confiding  in  his  said  assurances,  and  in 
the  belief  that  he  would  so  arrange  the  sale  as  not  to  disturb  or 
disquiet  them,  took  no  measures  to  interrupt  or  prevent  any  pro- 
ceeding of  Akers  under  his  said  decree  and  execution.  That 
before  the  said  sheriff's  sale  to  Buckbee,  and  before  the  said 
sheriff's  sale  to  Akers,  and  before  the  said  conveyance  from 
the  sheriff  to  the  defendant,  and  before  any  consideration  there- 
for was  paid  by  the  defendant,  the  defendant  was  informed  and 
well  knew  of  the  said  release,  and  of  its  having  been  made  be- 
fore Akers  acquired  his  interest  in  the  mortgage ;  and  that 
before  the  said  sheriff's  sale  to  Akers,  the  defendant  was  fully 
informed  by  Akers  that  he,  Akers,  had  no  interest  in  or  claim 
to  the  part  released  ;  that  the  same  had  been  released  ;  that  the 
decree  ought  not  to  have  been  taken  for  the  sale  of  that  part, 
and  was  in  that  respect  erroneous,  and  that  he  must  take  the 
deed  from  the  sheriff,  subject  to  the  rights  of  the  complainants 
in  the  part  so  released.  That  in  the  said  arrangement  between 
Akers  and  the  defendant,  no  part  of  the  consideration  money  for 
the  conveyance  to  the  defendant  was  computed  or  allowed  upon 
or  as  an  estimated  value  of  the  part  released,  and  that  no  con- 
sideration was  paid,  or  secured  to  be  paid,  by  the  defendant  there- 
for. That  before  the  sheriff's  deed  to  the  defendant  was  deliv- 
ered as  such  to  him,  the  complainants,  or  some  person  in  their 
behalf,  notified  him  of  the  said  release,  and  that  the  said  decree 
and  execution  were  erroneous  in  directing  a  sale  thereof.  That 
Ryerson,  the  defendant,  had  brought  ejectments  against  the 
complainants,  Pierson  and  Gruet,  to  recover  possession  of  the 
parts  they  respectively  hold  of  the  said  released  premises. 

The  prayer  of  the  bill  is  that  the  defendant  be  perpetually 
enjoined  from  prosecuting  the  said  ejectments,  and  from  com- 


200  CASES  IN  CHANCERY. 

Pierson  and  Gruel  v.  Byerson. 

mencing  any  other  proceedings  at  law  for  the  recovery  of  the 
possession  of  the  part  released,  and  from  conveying  the  same. 

A  preliminary  injunction  was  granted. 

Ryerson  put  in  au  answer  to  the  bill,  in  which,  among  other 
things  not  necessary  to  be  stated,  he  says  that,  answering  from 
the  best  of  his  knowledge,  information  and  belief,  but  not  ad- 
mitting its  due  execution  or  acknowledgment,  he  admits  the 
release,  and  that  it  was  recorded  as  stated  in  the  bill  ;  and  says 
that  he  can  answer  as  to  the  knowledge  of  Akers  of  the  release 
at  the  time  of  the  assignment  of  the  mortgage,  only  from  infor- 
mation derived  from  Akers  and  others,  and  that  from  such  in- 
formation, he  believes  that  Akers  was  then  wholly  ignorant  of 
the  release;  and  admits  the  property  was  struck  off  to  Akers  at 
the  sheriff's  sale,  and  says  that  Akers  bid  at  his  request,  and  as 
his  agent ;  and  that,  ou  the  10th  of  January,  1845,  he  paid 
$1100  of  the  purchase  money,  and  the  balance,  to  wit,  $1800, 
on  or  about  January  29th,  1845,  at  which  time  the  deed  was 
delivered  to  him  by  the  sheriff;  and  denies  that,  at  the  time  he 
bought  at  the  sheriff's  sale  as  aforesaid,  he  knew  or  had  any 
information  whatever,  that  the  part  alleged  to  have  been  con- 
veyed and  released  to  Pierson  had  been  so  released  ;  and  that 
Akers  had  no  claim,  right,  title  or  interest  therein  by  virtue  of 
his  mortgage,  but  says  he  made  the  purchase  under  the  belief 
that  he  was  buying  said  lands  free  and  clear  of  all  encumbran- 
ces whatever,  and  without  any  knowledge  of  the  pretended 
claims  now  set  up  by  Pierson  and  Gruet,  and  without  any 
knowledge  of  the  encumbrances  set  forth  in  the  bill,  relating  to 
the  execution  of  the  said  pretended  release,  and  without  any 
such  notice  or  information  from  Akers  as  is  alleged  in  the  bill ; 
and  says  that  the  first  time  he  ever  heard  of  the  release  men- 
tioned, was  on  the  8th  of  March,  1845,  after  he  had  paid  all  the 
purchase  money,  and  received  his  deed  as  aforesaid.  He  says 
it  may  be  true,  though  he  has  no  knowledge  of  the  fact,  that 
after  the  decree  the  complainants,' or  one  of  them,  called  on 
Akers  and  remonstrated  with  him,  as  stated  in  the  bill ;  and  that 
Akers  hud  no  knowledge  that  the  bill  of  complaint  prayed  a 
sale  of  all  the  land  mentioned  in  the  mortgage.  He  denies  that 
any  arrangement  was  made  between  Akers  and  him  respecting 
the  purchase  of  the  said  land  and  premises,  except  that  A  ..era 


DECEMBER  TERM,  1845.  201 

Pierson  and  Gruet  v.  Bjerson. 

should  buy  at  the  sale  as  his  agent;  and  he  more  particularly 
denies  that  any  arrangement  was  made  between  them  by  which 
no  part  of  the  consideration  of  the  said  conveyance  to  him  was 
computed  or  allowed  upon  or  as  an  estimated  value  of  the  tract 
so  released,  as  stated,  or  that  the  same  or  any  part  of  it  waa 
excluded  in  whole  or  in  part,  by  any  arrangement,  from  the 
computation  or  estimation  of  such  consideration  money  ;  and 
he  denies  that  no  consideration  money  was  paid  or  secured  for 
or  oo  account  of  the  same,  b«t  says  that  the  money  paid  by 
him  was  paid  and  intended  to  be  paid,  as  much  as  a  considera- 
tion for  that  part  as  for  any  other  part.  He  denies  that  before 
the  conveyance  of  the  sheriff  to  him,  the  complainants,  or  any 
other  person  or  persons  on  their  or  either  of  their  behalf,  or  in 
any  other  way,  notified  him  of  the  said  pretended  release,  or 
that  by  reason  thereof  the  mortgage  was  no  longer  a  lien  on 
the  same,  or  that  the  decree  and  execution  were  erroneous  as 
directing  the  sale  of  the  same,  or  that  the  complainants  held 
any  part  of  said  lands  free  and  clear  of  the  said  mortgage ;  and 
he  alleges  he  never  heard  of  any  such  release  till  after  he  had 
paid  for  the  land  and  received  his  deed  therefor. 

On  this  answer  a  motion  was  made  to  dissolve  the  injunction 

A.  Gifford  and  B.  Williamson,  in  support  of  the  motion. 
They  cited  4  John.  Ok.  Rep.  202 ;  5  Ibid.  69. 

A.    C.  M.   Pennington   and   A.    White/lead,  contra.      They 

cited  2   Vesey  19;    1    Paige's  Ch.  Rep.  100;  Dev.  Eq.  429; 

Hopkins,  148 ;  5  John.  Chan.  Rep.  247 ;  WyaWs  Prao. 
Reg.  19. 

THE  CHANCELLOR.  The  answer  is  insufficient  to  dissolve 
the  injunction.  So  far  as  the  equity  of  the  bill  rests  on  the  al- 
legation that  Akers,  before  he  took  the  assignment  of  the  mort- 
gage, had  notice  of  the  release,  there  is  no  sufficient  denial. 
The  answer  to  this  allegation  is,  that  the  defendant,  from  infor- 
mation derived  from  Akers  and  others,  believes  that  Akers  was 
then  wholly  ignorant  of  the  release.  A  denial  on  information 
and  belief,  of  notice  to  another,  is  not  sufficient  to  dissolve  au 
injunction. 

VOL.  i.  N 


202  CASES  IN  CHANCERY. 

Pierson  and  Gruet  v.  Kyerson. 

So  far  as  the  equity  of  the  bill  rests  on  the  allegation  that, 
before  the  sale  at  which  the  property  was  struck  off  to  Akers, 
and  before  the  defendant  took  the  deed,  he  knew  of  the  release, 
there  is  no  sufficient  denial.  The  bill  further  charges  that  be- 
fore, &c.,  the  defendant  was  informed  by  Akers,  that  he,  Akers, 
had  no  interest  in  or  claim  to  the  part  released.  The  defendant, 
in  answer,  says  that  Akers  bid  at  the  said  sale  at  his  request 
and  as  his  agent,  and  denies  that  at  the  time  he  bought  at  the 
sheriff's  sale,  as  aforesaid,  he  knew  or  had  any  information 
whatever,  that  the  part  alleged  to  have  been  conveyed  and  re- 
leased to  Pierson  had  been  so  released,  and  that  Akers  had  no 
claim,  right  or  interest  therein  by  virtue  of  his  mortgage,  but 
says  he  made  the  purchase  under  the  belief  that  he  was  buying 
the  lands  free  and  clear  of  all  encumbrances,  and  without  any 
knowledge  of  the  pretended  claims  now  set  up  by  Pierson  and 
Gruet,  and  without  any  knowledge  of  the  encumbrances  set 
forth  in  the  bill  relating  to  the  execution  of  the  said  pretended 
release,  and  without  any  such  notice  or  information  from  Akers 
as  is  alleged  in  the  bill.  A  denial  that  he  knew  of  the  release 
and  that  Akers  had  no  right  or  interest  in  the  part  released,  is 
not  a  denial  of  knowledge  of  the  release.  The  defendant  may 
have  been  of  opinion  that  Akers  had  a  right  or  interest  in  tliQ 
part  released,  by  virtue  of  the  mortgage  and  the  decree  thereon, 
notwithstanding  the  release.  The  denial  of  two  allegations 
conjunctively,  is  not  a  denial  of  each.  Again,  all  this  part  of 
the  answer  relates  to  the  time  when  he  (as  he  says)  bought  at 
the  sheriff's  sale,  as  aforesaid.  What  time  is  meant  here? 
The  time  when  the  property  was  struck  off  to  Akers,  or  the  time 
when  he  took  the  deed  from  the  sheriff? 

The  defendant  has  used  two  general  sentences  in  his  answer 
by  way  of  denial  of  knowledge  of  the  release.  In  one  of  them 
lie  says  that  the  first  time  he  ever  heard  of -the  release  men- 
tioned, was  on  the  8th  of  March,  1845,  after  he  had  paid  the 
purchase  money  and  received  his.  deed.  In  the  other  he  says 
he  never  heard  of  any  such  release  till  after  he  had  paid  for  the 
land  and  received  his  deed  therefor.  General  denials  are  al- 
ways unsatisfactory.  It  is  said,  "  Dolus  latet  in  gen-eralibus" 

In  this  case  the  release  was  recorded,  and  the  defendant  ad- 
mits it  was  recorded  as  stated  in  the  bill.  This  may  account 


DECEMBER  TERM,  1845.  203 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

for  the  language  used  in  these  general  sentences.  They  do  not, 
under  the  circumstances,  and  in  view  of  the  failure  in  the  more 
special  answer  to  this  charge,  amount  to  a  denial  of  knowledge 
of  the  release. 

It  would  be  unsafe  for  the  court  to  suppose  and  act  upon  the 
supposition,  that  a  want  of  observance  of  plain  rules  for  answer- 
ing is  the  result  of  inattention,  or  want  of  skill,  or  want  of 
precision  of  language.  It  may  proceed  from  an  unwillingness 
to  disclose  the  truth. 

The  motion  is  denied. 


THE  MORRIS  CANAL  AND  BANKING  COMPANY  v.  THE  SOCIETY 
FOR  ESTABLISHING  USEFUL  MANUFACTURES. 

1.  The  Society  for  Establishing  Useful  Manufactures,  incorporated  in  1791, 
located  at  the  falls  of  the  Passaic,  and  owning  mill  sites  there,  on  the  8th  of 
August,  1845,  pulled  down  a  gate  and  waste-way  of  the  canal  of  the  Morris 
Canal  and  Banking  Company,  incorporated  in  1824,  and  discharged  the  water 
from  the  canal  into  the  Passaic  above  the  falls.    The  canal  company  repaired 
the  breach,  and  filed  their  bill  against  the  society  for  an  injunction,  which  was 
granted. 

2.  The  society  answered  the  bill,  and  set  up  an  agreement  under  seal,  en- 
tered into  between  the  canal  company  and  them  in  1836,  for  the  discharge  of 
water  from  the  canal  into  the  stream  above  the  falls,  and  stated  that  the  canal 
company,  in  breach  of  the  contract,  had  nailed  down  the  gates  of  the  waste- 
way  and  stopped  the  flow  of  water  from  the  canal  to  the  river  ;  and  that  there- 
fore they  broke,  &c. ;  and  thereupon  it  was  moved  to  dissolve  the  injunction. 
The  motion  was  denied. 

3.  The  society  also  filed  a  cross-bill,  praying  a  decree  for  the  specific  per- 
formance of  the  agreement,  and  that  the  canal  company  might,  in  the  mean- 
time, be  restrained  from  preventing  the  flow  of  water  from  the  canal  to  the 
stream,  according  to  the  provisions  of  the  agreement,  and  moved  for  an  in- 
junction accordingly.    This  motion  was  also  denied. 

4.  Grounds  on  which  the  motions  were  denied. 

5.  A  right  claimed  must  be  free  from  doubt,  and  the  injury  from  a  violation 
of  it  irreparable  in  damages,  to  authorize  the  court  to  interpose  in  aid  of  it  bj 
preliminary  injunction. 

The  Morris  Canal   and  Banking  Company,  on  the  3d  of 
October,  1845,  exhibited  their  bill  against  the  Society  for  Estab- 


204  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures 

lishing  Useful  Manufactures,  stating  that  since  April  1st,  1845, 
the  said  company  have  been  engaged  in  widening  and  repairing 
their  canal,  and  having  completed  the  work,  proceeded,  early 
in  July,  to  fill  the  canal  with  water,  and  that,  thereupon, 
Roswell  L.  Colt,  governor  of  the  Society  for  Establish  ing  Useful 
Manufactures,  under  pretence  that  the  company  were  using 
water  to  fill  their  canal  which  of  right  belonged  to  the  society, 
which  allegation  and  pretence  the  complainants  declare  to  be 
untrue,  on  or  about  the  18th  of  July  last,  declared  his  intention 
to  break  down  the  gates  of  the  complainants'  canal  ;  that  the 
process  of  the  law  was  too  tedious,  and  that  he  would  take  the 
law  into  his  own  hands ;  and  made  many  violent  declarations 
and  threats,  all  expressive  of  the  same  intent.  That  on  the 
8th  of  August,  aforesaid,  the  canal  being  filled  and  ready  for 
business,  the  complainants  gave  public  notice  that  the  same 
was-  ready  for  business.  That  on  the  last-mentioned  day,  a 
party  of  men  of  ten  or  twelve,  of  Palerson,  the  location  of  the 
society,  in  a  violent  and  riotous  manner,  broke  down  a  gate 
and  waste-way  on  the  canal,  at  or  opposite  Paterson,  so  that 
the  water  in  the  canal  was  discharged  therefrom  for  a  distance 
of  seven  miles.  That  the  leader  of  the  party  declared  he  was 
employed  so  to  do  by  the  society,  and  when  remonstrated  with 
by  the  agent  of  the  complainants,  threatened  to  shoot  any  per- 
son who  should  interpose  to  prevent  him.  And  the  complain- 
ants charge  that  the  said  party  were  employed  arid  directed  to 
demolish  said  gate  and  waste-way  by  the  said  society,  or  by  R. 
L.  Colt,  acting  or  pretending  to  act  under  the  authority  ot  the 
society. 

That  the  complainants  gave  directions  for  the  immediate  re- 
pair of  the  breach,  and  had  no  doubt  the  same  had  been 
repaired,  and  that  the  part  of  the  canal  which  had  been  so 
emptied  was  in  the  course  of  being  filled  again,  and  that  the 
same  would  be  again  ready  for  business  in  a  few  days,  if  no 
further  violence  was  done  to  the  canal  or  its  works.  That  at 
the  time  of  the  said  demolition  they  had  seventy-five  boats  be- 
tween Newark  and  Paterson,  proceeding  to  Mauch  Chunk  for 
coal,  and  that  the  said  boats  were  stopped  by  reason  of  said 
breach,  and  that  there  were  at  the  time  many  other  boats  of 
the  company  and  of  individuals  about  to  be  put  on  the  canal. 


DECEMBER  TERM,  1845.  205 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

That,  by  the  act  of  incorporation  of  the  company,  the  canal  is 
•declared  to  be  a  public  highway.  That  the  canal,  if  unmo- 
lested, will  have  capacity  to  transport  about  300,000  tons  of 
coal  and  merchandise  annually.  That,  in  contemplation  of  the 
increased  capacity  of  the  canal  when  widened,  several  large 
establishments  have  been  put  up  on  the  line  of  the  canal ;  that 
other  establishments  on  the  line,  and  inhabitants  of  villages, 
would  be  injured  by  the  interruption  of  the  navigation  on  said 
canal.  That  the  company  have  in  no  way  infringed  any  right 
of  the  society  touching  the  use  of  the  waters  of  the  Passaic, 
but  charge  the  truth  to  be  that,  from  the  time  they  commenced 
filling  the  canal  to  the  time  of  the  said  injury  to  the  canal,  more 
water  was  running  in  the  Passaic  above  the  falls  than  before 
the  complainants  commenced  filling  their  canal,  by  reason  of 
the  leakage  from  the  canal,  and  by  the  water  flowing  from  the 
complainants'  reservoir  at  Long  Pond  into  the  Passaic  through 
the  Pompton.  That,  at  the  time  of  said  breaking,  water  was 
actually  running  over  a  dam  across  the  Passaic,  above  the  falls 
erected  by  the  society  for  the  express  purpose  of  diverting  the 
waters  of  the  Passaic  for  the  use  of  the  society  and  mill-owners; 
so  that  there  was  actually  running  in  the  Passaic,  at  the  time, 
more  water  than  the  society  could  divert  to  their  works. 

That  the  complainants  have  sustained  great  and  irreparable 
injury  and  damages  by  the  said  breach  and  the  interruption  of 
their  business ;  and  that  they  apprehend,  from  the  facts  above 
stated,  that  other  like  injuries  will  be  committed,  and  that  the 
said  society,  or  the  said  Colt,  or  some  person  or  persons  acting 
under  the  authority  of  them,  or  some  of  them,  Will  again  break 
down  or  destroy,  &c. ;  and  they  pray  an  injunction  against  the 
society  and  the  said  Colt,  restraining  them  from  breaking  down 
or  injuring  any  of  the  works  of  the  canal,  until  the  further  order 
of  this  court  to  the  contrary. 

An  injunction  was  granted  according  to  the  prayer  of  the 
bill. 

The  society  put  in  an  answer  to  the  bill.  They  state  the 
incorporation  of  the  society  in  1791,  the  purchase  of  700  acres 
of  land  at  the  great  falls  of  the  Passaic,  the  construction  of  a 
canal  from  a  short  distance  above  the  falls,  to  lead  the  water 
through  the  lands  bought  by  them  and  empty  it  into  the  rivei 


206  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

below  the  falls,  and  the  construction,  at  different  periods,  of  two 
other  canals,  so  that  the  water  is  now  used  three  times.  That 
the  ground  adjacent  to  the  canals  forms  sites  for  mills,  and  that 
the  society,  finding  that  their  manufacturing  business  could  be 
carried  on  more  advantageously  and  effectively  through  indi- 
vidual enterprise,  have  in  a  few  instances  sold,  and  in  general 
leased,  on  reservation  to  the  society  of  annual  rents,  a  great 
number  of  lots,  as  sites,  on  which  have  been  erected  a  number 
of  mills,  which  are  now  in  full  operation,  and  have  leased  or 
sold  water-power  on  the  upper  canal  to  the  amount  of  twenty- 
on«  square  feet  of  water,  on  the  middle  canal  of  twenty-one 
and  a  half  square  feet,  and  on  the  lower  canal  of  twenty-two 
square  feet.  That  the  lots  already  appropriated,  with  the  build- 
ings and  machinery  thereon,  are  worth  about  $1,800,000.  That 
said  canals,  improvements,  and  leases  have  all  been  made  and 
taken,  under  the  confident  expectation  that  the  faith  of  the  state 
would  be  kept  inviolate,  and  that  the  waters,  of  the  Passaic 
would  be  allowed  to  continue  to  flow,  &c.  That  Paterso-n,  in- 
corporated under  the  said  charter,  now  contains  11,000  inhabi- 
tants. That  the  society,  by  such  purchase,  <fec.,  became  entitled 
to  the  full  flow  of  all  the  waters  of  the  Passaic  and  its  tribu- 
taries, without  alteration  or  diminution.  That  the  Passaic  is 
formed  by  the  confluence  of  three  large  branches — the  Passaic, 
Rockaway,  and  Pomptou  branches.  That  the  complainants,  in 
1828,  constructed  works  on  the  Rockaway,  near  Dover,  Power- 
ville,  and  Boonton,  by  means  whereof  they  diverted  water  of 
the  Rockaway  and  its  tributaries  into  their  canal,  and  carried  it 
away  from  the  falls  at  Paterson  and  from  the  canals  of  the 
society  there.  That,  by  means  of  the  said  works  at  Dover,  Pow- 
erville,  and  Boonton,  the  complainants  can  take  from  the  Rock- 
away  as  much  water  as  they  want,  to  supply  their  canal,  with- 
out the  knowledge  of.  any  person  except  their  own  agents. 
That,  in  consequence  of  dams,  &c.,  on  the  streams,  the  diminu- 
tion of  water  in  the  Passaic,  from  the  withdrawal  of  it  as  afore- 
said, will  not  be  immediately  seen  and  felt  in  some  parts  of  the 
river,  which  gives  rise  to  contradictory  evidence  respecting  such 
diminution,  and  involves  it  in  obscurity.  That  the  canal  of 
the  complainants  cute  off  •  great  number  of  small  streams  which 
formerly  ran  into  the  different  branches  of  the  Passaic.  That 


DECEMBER  TERM,  1845.  207 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

in  1828,  the  society  filed  their  bill  iu  chancery,  to  enjoin  the 
said  company,  and  that  the  Chancellor  decreed  that  the  society 
have  a  clear  right  to  the  flow  of  all  the  waters  of  the  Passaic, 
at  the  great  falls,  without  diminution,  and  that  an  injunction 
would  be  ordered  when  an  actual  injury  should  be  sustained  by 
the  society,  by  the  said  company's  taking  any  of  the  waters 
of  the  Passaic.  That  in  1833,  the  society  filed  another  bill,  in 
which  the  Chancellor  made  a  like  decision  as  to  the  rights  of 
the  society.  That  there  was  no  necessity  for  the  said  canal 
company  to  mix  their  waters  with  the  waters  of  the  Rockaway, 
and  that  they  did  so  for  the  purpose  of  taking  the  waters  of  the 
Pussaic  or  its  tributaries,  into  their  canal.  That  the  works  at 
Paterson  will  require  all  the  waters  of  the  Passaic,  during  the 
summer  months,  and  that  if  the  canal  company  are  permitted 
so  to  divert  the  waters,  without  giving  the  society  the  water  in 
return,  as  provided  for  in  the  agreement  in  the  answer  after 
mentioned,  they  will,  during  the  summer  months — more  espe- 
cially in  dry  seasons — divert  a  great  portion  of  the  water  from 
the  works  at  Paterson,  and  will  greatly  injure  them  at  other 
seasons  of  the  year.  That  in  January  and  February,  1836, 
the  canal  company  applied  to  the  legislature  for  a  supplement 
to  their  chatter,  to  enable  them  to  make  a  reservoir  at  Long 
Pond  and  a  feeder  at  Pompton,  to  use  the  water  of  the  canal 
for  manufacturing  purposes,  to  increase  the  capital  stock  $600,- 
000,  for  the  purpose  of  making  reservoirs,  feeders,  &c. ;  that  the 
society  and  mill  owners  remonstrated;  and,  while  said  applica- 
tion was  pending,  and  after  a  time  had  been  fixed  for  the  hear- 
ing of  the  parties  before  a  committee  of  the  legislature,  to  settle 
the  difficulties  between  the  company  and  the  society,  and  because 
the  conflict  between  them  was  so  important,  and  affected  so  many 
persons,  and  to  compromise  disputed  rights  appertaining  to  the 
franchises  of  the  two  companies  then  in  the  enjoyment  of  those 
franchises,  it  was,  on  the  17th  of  February,  1836,  agreed  between 
the  companies,  in  writing,  as  follows: 

"  Whereas  certain  controversies  have  arisen,  and  have  for 
some  time  existed  between  'The  Society  for  Establishing  Use- 
ful Manufactures' and 'The  Morris  Canal  and  Banking  Com- 
pany,' in  relation  to  the  use  of  the  waters  of  the  Passaic  river, 
'The  Society  for  Establishing  Useful  Manufactures' 


208  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

that  'The  Morris  Canal  and  Banking  Company'  were  divert- 
ing the  water  of  some  of  the  tributary  streams  of  the  Passaic, 
so  as  greatly  to  diminish  the  waters  at  Paterson,  in  times  of 
drought,  of  which  the  said  '  Society  for  Establishing  Useful 
Manufactures'  claim  the  exclusive  use — which  allegation  was 
and  is  denied  by  '  The  Morris  Canal  and  Banking  Company  / 
now,  in  order  to  terminate  in  an  amicable  manner  all  said  mat- 
ters in  difference  between  the  said  companies,  it  is  covenanted 
and  agreed  between  them  as  follows : 

"First.  The  said  '  Society  for  Establishing  Useful  Manufac- 
tures' covenant  and  agree,  to  and  with  'The  Morris  Canal  and 
Banking  Company/  that  they  will  erect,  at  their  own  expense, 
a  permanent,  water-tight  dam,  and  at  all  times  will  keep  the 
same  water  tight  (unavoidable  accidents  excepted),  across  the 
Passaic  river,  at  the  ledge  of  rocks  between  their  present  dam 
and  the  great  falls  j  said  dam  to  be  of  such  height  as  will  keep 
the  water  at  a  level  equal  to  that  which  can  be  maintained  by 
the  present  dam,  and  that  they  will  make  and  keep  their  pres- 
ent middle  canal  or  raceway  in  good  order  and  repair,  and 
water  tight,  and  so  adjust  the  waste-gates  on  the  same  that  the 
water  shall  stand  in  the  said  raceway  not  less  than  thirty  inches 
above  the  monument  set  in  the  raceway  at  the  rear  of  Car- 
rick's  mill,  that  being  the  ordinary  height  of  the  water  in  said 
race.  That  they  will  so  regulate  the  sluices  or  gates  to  the 
mills  on  that  race,  that  not  more  than  t \veuty-tw9  square  feet 
of  water  shall  be  drawn  from  the  same  under  a  pressure  or  head 
of  not  more  than  thirty  inches,  measured  from  the  centre  of  the 
apertures  to  the  surface  of  the  water;  the  apertures  already 
contracted  for  to  be  twelve  inches  square,  excepting  where, 
under  existing  agreements,  it  is  stipulated  that  they  shall  be  of 
a  di  fie  rent  form,  and  those  thereafter  to  be  contracted  for  to  be 
not  less  than  six  inches  in  depth ;  it  being  expressly  understood 
that,  in  this  arrangement,  it  is  agreed  that  a  quantity  equal  to 
twenty-two  square  feet  of  water,  drawn  under  a  head  of  thirty 
indu-s,  measured  as  aforesaid,  is  the  minimum  quantity  of 
water  to  flow  regularly  for  the  supply  of  the  mills  now  erected, 
or  hereafter  to  be  erected  at  Paterson,  to  be  measured  on  said 
middle  canal  in  manner  aforesaid.  And  the  said  'The  Society 
tor  Establishing  Useful  Manufactures/  in  consideration  of  the 


DECEMBER  TERM,  1845.  209 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

covenant  hereinafter  and  first  contained,  on  the  part  of  '  The 
Morris  Canal  and  Banking  Company/  do  hereby  consent  and 
agree,  so  far  as  they  have  the  power  so  to  do,  that  the  said 
'  Morris  Canal  and  Banking  Company '  may  make  and  avail 
themselves  of  all  reservoirs  on  the  head  waters  of  any  of  the 
tributary  streams  of  the  Passaic  river,  and  divert  those  streams, 
and  use  the  waters  thereof  as  they  may  think  proper. 

"And  the  said  '  The  Morris  Canal  and  Banking  Company* 
do  hereby  covenant  and  agree  to  and  with  the  said  '  The  So- 
ciety for  Establishing  Useful  Manufactures/  that  they  will  dis- 
charge from  their  canal,  through  a  basin  formed  by  '  The  So- 
ciety for  Establishing  Useful  Manufactures/  and  by  them  kept 
in  repair  and  water-tight,  in  the  natural  ravine  on  the  rocky 
hill  adjoining  the  canal,  near  the  falls,  at  all  times,  unless 
when,  from  breaches,  or  unavoidable  accidents,  it  cannot  be 
done,  three  square  feet  of  water,  to  be  drawn  from  the  canal 
under  a  head  of  thirty  inches,  to  be  measured  from  the  centre 
of  the  aperture  or  apertures  to  the  surface  of  the  water,  and  to 
flow  into  the  said  Passaic  river  above  the  said  dam,  to  be  erected 
by  the  said  'The  Society  for  Establishing  Useful  Manufac- 
tures/ as  is  hereinbefore  provided  for'  which  apertures  shall 
not  be  less  than  eight  inches  in  depth.  And  if  the  said  three 
feet  of  water,  so  drawn  as  aforesaid  from  the  said  canal,  shall 
not  at  any  time,  with  the  water  in  said  river,  be  sufficient  to 
keep  the  pond  so  full  as  may  be  necessary  to  give  to  the  said 
'  The  Society  for  Establishing  Useful  Manufactures'  twenty-two 
square  feet  of  water  in  their  said  middle  canal,  to  be  drawn 
under  the  pressure  above  mentioned,  thei:  '  The  Morris  Canal 
and  Banking  Company'  covenant  and  agree  to  discharge  as 
much  more  water  from  their  said  canal,  in  addition  to  the  three 
feet  above  mentioned,  as  shall  always  give  the  above  minimum 
quantity  in  the  said  middle  canal  of  the  said  'The  Society  for 
Establishing  Useful  Manufactures.'  And  in  case,  at  any  time, 
the  said  dam  and  raceway  of  '  The  Society  for  Establishing 
Useful  Manufactures' shall  not  be  water-tight,  for  any  reason 
whatever,  the  said  '  Morris  Canal  and  Banking  Company  '  shall 
not,  during  the  time  the  same  remains  out  of  repair,  be  obliged 
to  discharge  more  than  three  feet  of  water  from  the  canal,  in  the 
manner  herein  mentioned.  And  '  The  Morris  Canal  and  Bunk- 


210  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

ing  Company'  hereby  agree  that  if  they  shall  hereafter  be  sat- 
isfied by  experience,  that  in  dry  seasons  the  natural  supply  of 
water  in  the  Passaic,  at  Paterson,  shall  be  equal  to  twenty-three 
feet  under  the  pressure  and  head  hereinbefore  mentioned,  then 
the  minimum  of  water  to  be  secured  to  the  works  of  (  The  So- 
ciety for  Establishing  Useful  Manufactures/  at  Paterson,  shall 
be  fixed  at  that  quantity. 

"  'The  Society  for  Establishing  Useful  Manufactures'  hereby 
covenant  and  agree  that  '  The  Morris  Canal  and  Banking 
Company/  for  the  purpose  of  forming  a  reservoir  in  the  Passaic 
river,  at  and  above  the  falls,  may,  at  their  own  expense,  increase 
the  height  of  the  main  dam  across  the  said  river,  provided,  how- 
ever, that  the  said  '  The  Morris  Canal  and  Banking  Company  ' 
shall  pay  and  satisfy  any  damages  which  may  Be  sustained  by 
any  person  or  persons  other  than  the  said  '  The  Society  for  Es- 
tablishing Useful  Manufactures/  in  consequence  of  the  erection 
of  the  said  darn. 

"  For  the  purpose  of  having  this  arrangement  fairly  and  pro- 
perly executed  by  the  respective  parties,  it  is  hereby  further 
agreed  that  a  competent  person  be  annually  appointed  by  the 
parties,  and  be  paid  by'thern  equally,  whose  duty  it  shall  be 
to  see  that  the  terms  of  this  agreement  are  complied  with  by  the 
respective  parties.  And  in  case  the  parties  cannot  agree  upon 
the  person  to  be  appointed,  then  it  is  agreed  that  each  party 
will  nominate  an  arbitrator,  and  the  two  arbitrators  so  named 
shall  appoint  the  said  person  ;  and  if  they  cannot  agree,  then 
they  shall  nominate  a  third  arbitrator,  and  the  said  three  arbi- 
trators, or  any  two  of  them,  shall  appoint  the  said  person  to  see 
that  this  agreement  is  properly  and  fairly  executed. 

"It  is  understood  between  the  parties  hereto,  that  this  agree- 
ment is  not  binding  upon  them,  unless  the  legislature  of  the 
State  of  New  Jersey  shall  pass  an  act  at  their  present  session, 
enabling  and  authorizing  'The  Morris  Canal  and  Banking 
Company '  to  use,  or  let  to  others  to  use,  the  waters  in  their  ca- 
nal, for  driving  machinery  for  manufacturing  purposes,  and  also 
authorizing  them  to  make  a  feeder  to  Long  Pond,  and  to  ac- 
quire and  make  other  reservoirs,  for  the  purpose  of  obtaining  a 
supply  of  water  for  the  use  of  st»id  canal ;  and  to  increase 
their  capital  to  an  amount  sufficient  to  acquire,  and  make  the 


DECEMBER  TERM,  1845.  211 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

necessary  reservoirs  and  feeders,  or  shall  grant  such  part  or 
parts  of  their  application  as  shall  induce  'The  Morris  Canal 
and  Banking  Company'  to  make  the  contemplated  improve- 
ments, for  the  use  of  the  waters  of  the  Passaic,  or  any  of  its 
tributaries. 

"  In  witness  whereof,  the  president  of  *  The  Morris  Canal 
and  Banking  Company/  and  the  governor  of  '  The  Society  for 
Establishing  Useful  Manufactures,'  have  hereunto  set  their  re- 
spective hands,  the  seventeenth  day  of  February,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-six. 

"  Louis  McLANE, 

"President  of  the  Morris  Canal  and  Banking  Company. 
,  f f     "  ROSWELL  L.  COLT,  Governor  S.  U.  M. 

"Signed,  sealed  and  delivered  in  the  presence  of    \ 
A.  S.  PENNLNGTON,    ELIAS  B.  D.  OGDEN."  j 

That  the  said  agreement  was  signed  by  the  then  president  of 
the  canal  company,  and  by  R.  L.  Colt,  governor  of  the  society; 
and  that  said  president  was  clothed  with  full  power  to  make 
said  agreement  by  a  resolution,  &c.  That  said  agreement  was 
entered  into  in  good  faith  by  the  society,  and  they  thereupon 
considered  that  all  controversies  with  the,  said  company  were  at 
an  end.  That  in  pursuance  of  the  said  agreement,  the  society 
built,  at  great  expense,  a  dam  across  the  river,  and  also  at  the 
place  referred  to  in  said  agreement;  and  built  a  lock  at  the 
place  and  in  the  mode  pointed  out  by  the  engineer  of  the  canal 
company,  to  take  the  water  from  the  said  canal,  according  to 
the  terms  of  the  said  agreement.  That  the  canal  company  took 
down  their  bank  across  a  ravine,  cleared  out  the  ravine,  and 
surrendered  the  possession  of  it  to  the  society  ;  and  the  same 
continued  open  and  was  used  by  the  society  until  it  was  ob- 
structed by  the  company,  as  after  stated  in  the  answer.  That 
after  the  execution  of  the  said  agreement,  the  society  and  others 
withdrew  their  opposition  and  assisted,  &c.,  and  the  said  sup- 
plement applied  for  by  the  said  company  was  passed  by  the  leg- 
islature, March  5th,  1836. 

The  answer  insists  that  this  act,  and  the  acceptance  of  it, 
effected  a  change  in  the  chartered  rights  of  the  canal  com- 
pany, investing  them  with  additional  powers;  and  that  such 
change  being  made  by  virtue  of  the  said  agreement  with  the 


212  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

society,  and  in  consequence  of  the  withdrawal  of  their  opposi- 
tion, the  agreement  became  a  part  of  the  same  transaction,  as 
much  as  if  it  had  been  distinctly  referred  to  in  the  said  supple- 
ment, and  was  thereby  fastened  on  the  franchises  of  the  canal 
company,  in  whose  hands  soever  they  might  fall ;  and  that  the 
rights  of  the  society  under  the  said  agreement  became  a  lien 
on  the  franchises  and  privileges  of  the  canal  company,  so 
far  forth  as  should  be  necessary  to  carry  the  same  into  full 
effect. 

That  under  the  said  supplement  the  canal  company  increased 
their  capital  and  made  a  large  reservoir  at  Long  Pond,  and 
a  feeder  to  their  canal,  and  by  one  or  more  dams  took  into  their 
canal  the  waters  of  the  Pompton  and  its  tributaries,  so  that  they 
could  then  take  into  their  canal,  in  a  dry  season,  if  they  chose 
to  do  so,  all  the  waters  of  the  Pompton  and  Rockaway,  leaving 
the  defendants  without  any  remedy,  except  by  reason  of  the 
said  agreement.  That  Cornelius  S.  Van  Wagoner  was  ap- 
pointed by  the  companies  their  joint  agent,  to  see  that  the  terms 
of  the  said  agreement  should  be  complied  with  ;  and  the  said 
two  companies  executed  a  commission  to  him,  dated  February 
6th,  1839,  as  follows :  (Setting  out  the  commission.  It  is  an 
appointment  for  one  year,  to  see  that  the  agreement  is  complied 
with.)  That  since  the  passage  of  the  supplement,  the  company 
have  exercised  the  powers  granted  by  it  and  by  the  said  agree- 
ment. That  said  Van  Wagoner  did,  from  time  to  time,  draw 
from  the  canal  such  water  as  was  required  by  the  society,  not 
exceeding  the  quantity  stipulated  to  be  drawn  by  said  agreement, 
for  the  use  of  the  society;  and  that  the  society  have,  ever  since 
that  agreement,  taken  from  said  canal  such  water  as  they  wanted, 
according  to  the  said  agreement,  until  prevented,  as  after  stated. 
That  the  society  now  own  the  said  ravine.  That  the  company 
commenced,  last  spring,  to  enlarge  their  canal,  and  that  the 
society  have  been  prevented  from  interfering  to  prevent  it  by 
reason  of  their  being  bound  by  the  said  agreement. 

That  on  the  17th  of  June  last,  (1845,)  the  company  erected  a 
wall  and  wood-work  so  us  to  prevent  any  water  from  flowing 
fn»rn  the  canal  into  the  Passaic,  or  basin  above  the  falls,  and 
placed  gates  in  the  same,  which  they  nailed  up,  so  that  the 
society  could  not  take  the  water  from  the  canal,  as  provided  for 


DECEMBER  TERM,  1845.  213 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufacturer. 

in  the  said  agreement,  at  the  place  so  cleared  out  and  surren- 
dered to  the  society,  in  part  performance  of  the  said  agreement, 
though  forbidden  by  the  society  from  erecting  said  wall  and 
wood  work.  That,  after  the  said  erections,  the  works  at  Pater- 
son  became  short  of  water ;  that,  at  sometimes,  there  would  be 
plenty  of  water,  and  at  other  times  a  scarcity  ;  and  that,  on  the 
first  of  August  last,  the  company  drew  into  their  canal  nine- 
tenths  of  all  the  waters  of  the  Pompton,  by  their  said  feeder, 
and,  at  the  same  time,  took  a  considerable  part  of  the  Rockaway 
or  its  tributaries ;  so  that  some  of  the  mills  at  Paterson  could 
not  run  all  their  machinery.  That  the  society,  seeing  that  the 
water  was  low  at  Paterson,  by  reason  of  the  conduct  of  the 
company,  on  the  21st  of  July  last,  addressed  a  letter  to  the 
company  as  follows  :  (The  letter  is  here  given.  It  states  that, 
by  the  contract,  the  society  is  entitled  to  a  constant  flow  from 
the  canal  of  three  square  feet,  under  a  pressure  of  thirty 
inches,  and  also  to  draw  from  the  canal  enough  water  to  supply 
twenty-two  feet,  at  all  times,  in  the  middle  canal  of  the  society 
at  Paterson,  and  that  the  society  can  view  the  said  wall  and 
wood  work  to  close  said  waste-way  in  no  other  light  than  as  a 
nuisance,  which  they  will  treat  accordingly,  unless  the  company 
immediately  furnish  them  with  their  water,  according  to  said 
agreement,  as  the  water  is  now  very  short.)  That  they  re- 
ceived, the  same  day,  an  answer  from  the  cashier  of  the  com- 
pany, that  the  president  was  absent,  and  that  on  his  return  the 
letter  of  the  society  would  receive  immediate  attention  ;  and 
that  since  then  the  society  have  not  heard  from  the  company 
in  relation  to  it;  and  the  society,  finding  the  waters  of  the 
Passaic,  after  sending  said  letter,  rapidly  diminishing,  and  com- 
plaints being  made  by  the  mill-owners,  grantees  or  lessees  of 
the  society,  of  the  scarcity  of  water,  and  that  they  could  only 
run  a  part  of  their  machinery  ;  and  the  society  having  ascer- 
tained that  the  company  were  drawing  a  great  deal  of  water 
from  the  Pompton  and  Rockaway,  and  their  tributaries,  while 
at  the  same  time  they  had  shut  off  all  supplies  to  the  works  at 
Patersou,  the  society  were  compelled,  to  prevent  irreparable 
injury  to  the  mills  and  inhabitants  of  Paterson,  to  remove  said 
wall  and  wood-work,  and  to  treat  the  same  as  a  nuisance  ;  and 
they  admit  that,  on  the  8th  of  August,  1845,  they  did  remove 


214  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

so  much  thereof  as  would  permit  the  water  to  flow  as  it  had 
been  accustomed  to  flow  through  the  said  ravine,  from  the  time 
the  said  lock-gate  was  erected  until  the  said  wall  and  wood- 
work were  erected.  They  admit  that  said  Dickerson  and  others 
were  employed  by  them  to  remove  the  same.  They  say  that, 
for  several  days  before  the  breaking  down  the  said  wall,  the 
water  had  been  very  low  at  Paterson,  occasioned  by  the  com- 
pany's diverting  and  using  the  waters  of  the  Passaic,  and  not 
returning  any  through  the  said  ravine.  That  sometimes  there 
would  be  plenty  of  water,  and  then  again  a  scarcity,  without  any 
cause  except  the  will  of  the  company,  who  let  the  waters  come 
down  irregularly.  That  it  may  have  been  that,  at  the  particular 
time  when  the  wall  was  removed,  there  was  water  at  Paterson  ; 
but  if  there  was,  it  was  only  a  temporary  matter;  and  that,  at 
that  time,  the  said  ravine  was  closed  by  the  act  of  the  company, 
so  that  no  water  could  run  to  the  works  at  Paterson  through  the 
same;  whereas,  by  the  said  agreement,  the  society  were  entitled 
at  all  times  to  have  three  square  feet  of  water  running  through 
the  said  ravine;  and  that  this  right  did  not  depend  on  the 
quantity  of  water  in  the  river. 

On  this  answer,  a  motion  was  made  to  dissolve  the  injunction. 

The  society  also  filed  a  cross-bill,  stating  the  matters  set 
forth  in  their  answer,  and  stating,  in  addition  thereto,  that  the 
commissioners  appointed  by  the  legislature,  previous  to  the 
granting  of  the  canal  charter,  to  examine,  &c.,  contemplated 
that  Lake  Hopatcong  would  be  an  ample  supply  for  the  said 
canal,  and  recommended  its  subserviency  to  that  object;  that 
Green  Pond  is  a  small  lake,  whose  waters  are  carried  by 
Meadow  Brook  into  the  Rockaway  ;  and  that  it  was  not  contem- 
plated by  the  said  commissioners,  or  recommended,  that  its 
waters,  or  any  waters  contributing  to  the  Passaic,  should  be  ap- 
plied to  the  purposes  of  the  said  canal.  That  one  inducement 
for  selecting  Paterson  as  the  site  of  the  society's  operations,  was 
the  consideration  that  Green  Pond  might  be  converted  into  a 
reservoir  to  supply,  in  some  measure,  the  deficiency  of  water 
occasioned  by  the  droughts  of  the  summer  months.  That  the 
canal  company,  in  March,  1830,  executed  a  mortgage  to  Wil- 
helm  Willink  on  the  canal  and  chartered  rights  of  the  compa« 


DECEMBER  TERM,  1845.  215 

.VTorriw  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

ny  to  secure  $750,000,  and  have  since  executed  one  or  more 
mortgages  to  the  State  of  Indiana  and  to  the  State  of  Michi- 
gan. That  after  the  making  of  the  said  agreement  between 
the  company  and  the  society,  and  while  the  company  were 
enjoying  the  benefits  thereof,  VVillink  filed  his  bill  against  the 
canal  company,  on  the  20th  of  October,  1841,  to  foreclose  his 
mortgage  ;  but  that  the  Society  were  not  made  parties  to  the 
bill.  That  under  a  decree  and  execution  in  that  suit,  the  canal, 
the  feeder  and  its  appendages,  and  the  chartered  rights  of  the 
1  'inal  company  were,  on  the  1st  of  October,  1844,  sold  to  B. 
Williamson,  A.  Whitehead  and  J.  J.  Bryant,  and  conveyed  to 
them.  That  the  society  did,  on  the  day  and  at  the  place  of 
sale,  and  before  the  sale,  publicly  give  notice  of  the  said  agree- 
ment to  all  persons  who  might  bid  at  the  said  sale.  That  the 
persons  now  holding  the  said  property  and  franchises  claim  to 
represent,  or  to  be,  the  Morris  Canal  and  Banking  Company, 
and  as  such  are  organized  under  the  said  supplement  of  1836. 
That  the  Morris  Canal  and  Banking  Company,  thus  organized, 
have  lately  widened  and  deepened  their  canal,  and  will,  by  rea- 
son thereof,  be  obliged  to  take  more  water  from  the  Passaic  or 
its  tributaries;  and  that  the  society  have  been  prevented  from 
interfering  to  prevent  such  alterations  by  reason  of  their  being 
bound  by  the  said  agreement. 

That  about  June  17th,  1845,  the  company  constructed  ths 
said  wall  and  wood-work  on  land  of  the  said  society,  on  the 
line  of  the  said  canal,  and  fixed  gates  in  the  same^which  they 
afterwards  nailed  up,  so  that  the  society  could  not  receive  the 
discharge  of  water  from  the  canal,  as  provided  for  in  the  said 
agreement.  That  the  place  where  they  so  erected  the  said 
work  was  previously,  and  ever  since  the  same  was  first  cleared 
out  by  them  under  the  said  agreement,  left  open  and  unob- 
structed by  the  canal  company,  in  part  performance  of  the 
said  agreement ;  and  that  the  canal  company  never  had  at- 
tempted to  place  any  obstructions  or  erections  there,  nor  had 
claimed  any  right  so  to  do,  until,  &c.  That  while  the  said 
company  were  erecting  the  said  wall  and  wood- work,  the  so- 
ciety forbid  them  and  notified  them  that  they  had  no  right  to 
erect  them.  That  while  the  company  were  filling  their  canal, 
the  works  at  Paterson  have  been  short  of  water,  and  that  the 


216  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

company  have  taken  the  waters  of  the  Rockaway  and  its  tribu- 
taries, and  also  the  waters  of  the  Pompton  and  its  tributaries, 
as  they  are  authorized  by  the  said  agreement  and  the  said  sup- 
plement to  do,  to  fill  their  canal ;  and  in  a  dry  season  they  can- 
not carry  on  their  operations  on  the  said  canal  without  using 
the  waters  of  the  Passaic  or  its  tributaries ;  and  that  they  have 
and  now  do  greatly  diminish  the  flow  of  water  at  Paterson. 

The  cross-bill  then  states  the  letter  to  the  company,  &e.,  as 
stated  in  their  answer  to  the  bill  of  the  company,  and  that  the 
company,  since  the  date  of  the  letter,  have  continued  to  draw 
from  the  Rockaway  and  its  tributaries  and  from  the  Pompton; 
and  at  some  times  have  drawn  nearly  all  the  water  of  the 
Pompton.  That  on  the  1st  of  August,  1845,  they  drew  nine- 
tenths  of  the  water  of  the  Pompton  into  the  canal  through  their 
said  feeder,  and  have  thereby  so  affected  the  water  of  the  Pas- 
saic, that  many  of  the  mill  owners-and  lessees  of  the  society 
have  not  been  able  to  drive  all  their  machinery.  That  the  so- 
ciety, finding  that  the  company  were  diverting  the  waters  of 
the  Passaic,  and  that  the  water,  from  time  to  time,  in  different 
parts  of  different  days,  was  so  low  as  not  to  allow  the  mills  to 
run  at  their  usual  and  accustomed  speed,  removed  a  part  of  the 
said  wall  and  wood- work  on  the  8th  of  August,  1845,  so  as  to 
permit  the  water  of  the  canal  to  flow  to  the  Passaic  above  the 
falls,  as  it  had  been  accustomed  to  flow  under  the  said  agree- 
ment, and  until,  &c. 

That  afterwards,  on  the  16th  of  August,  1845,  the  canal 
company  erected,  on  lands  of  the  society,  in  the  said  ravine, 
a  solid  stone  wall,  of  the  width  of  ten  feet,  extending  to  the 
face  or  exterior  line  of  the  canal,  so  that  no  water  can  flow 
from  the  canal  to  the  works  at  Paterson,  arid  afterwards  stop- 
ped the  gates  from  their  reservoir  at  Long  Pond,  so  that  no  wa- 
ter could  come  from  that  place;  and  on  the  18th  and  19th  of 
August,  and  for  some  days  before,  diverted  all  the  water  of  the 
Pompton  into  their  said  feeder  and  thence  into  their  canal,  and 
nearly  all  the  waters  of  the  Rockaway  at  Boonton  into  their 
canal,  and  at  the  same  time  brought  no  water  down  from  Long 
Pond  ;  by  reason  whereof,  nearly  all  the  mills  at  Paterson  were 
stopped  or  could  run  only  a  small  portion  of  their  machinery  ; 
by  which  means  they  diverted  about  two-thirds  of  all  the  water 


DECEMBER  TERM,  1845.  217 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

which  should  have  flowed  to  the  works  at  Paterson,  the  right  to 
the  flow  of  which,  without  diminution,  belonged  to  and  still 
does  belong  to  the  society. 

That  the  company,  in  their  bill,  have  not  in  any  way  stated 
the  said  agreement  between  the  company  and  the  society,  nor 
the  said  supplement  of  March  5th,  1836,  under  which  agree- 
ment and  act  combined  the  company  derive  the  important 
powers  above  set  forth  ;  nor  have  they  set  forth  the  fact  that  the 
society  were  in  the  actual  possession  and  ownership  of  the  said 
ravine,  and  the  flow  of  water  from  the  said  canal  to  the  works 
at  Paterson,  and  that  the  society  had  been  so  using  and  enjoy- 
ing the  same  since  the  said  agreement,  but  have  knowingly 
suppressed  the  same.  That  the  company  have  charged  tolls 
on  the  Pompton  feeder,  made  since  the  passing  of  the  supple- 
ment of  1836,  and  claim  the  right  to  lease  the  waters  of  the 
canal  for  manufacturing  purposes,  by  virtue  of  said  supplement, 
and  have  used  the  said  Pompton  feeder  and  reservoir  at  Long 
Pond,  and  drawn  water  therefrom,  which  they  only  had  a  right 
to  do  by  virtue  of  the  said  agreement  and  the  said  supplement. 
That  said  supplement  was  passed  because  the  society  had  made 
the  said  agreement  with  the  said  company,  and  that  in  conse- 
quence of  said  agreement,  the  society  withdrew  their. opposition 
to  the  said  supplement,  and  thereupon  it  was  passed.  That  as 
the  company  are  enjoying  the  benefits  resulting  to  them  from, 
the  said  supplement,  which  was  based  on  the  said  agreement,, 
they  cannot  take  the  benefits  resulting  from  the  said  agreement, 
and  refuse  to  be  bound  by  the  agreement  under  which  the  said 
supplement  passed.  That  if  the  said  agreement  is  not  binding 
on  the  company,  they  have  no  right  to  the  benefits  resulting 
from  the  said  supplement,  or  the  privileges  granted  by  it,  and 
must  give  up  their  reservoir  at  Long  Pond  and  their  Pompton 
feeder,  aud  their  right  to  lease  water  as  aforesaid,  and  must  per- 
mit all  the  waters  of  the  Pompton  and  Rockaway  and  their 
tributaries  to  flow  down  the  Passaic  to  Paterson,  without  altera- 
tion or  diminution.  That  under  these  circumstances  the  society 
hoped  the  company  would  have  desisted,  &c.,  or  from  interfer- 
ing with  the  society  to  prevent  them  from  receiving  a  discharge 
of  water  from  the  canal  into  the  river,  through  the  said  ravine, 
as  provided  for  by  the  said  agreement. 

VOL.  i.  o 


218  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

The  society  insist  that,  on  a  sound  construction  of  the  charter 
of  the  company,  they  are  not  authorized  by  the  general  expres- 
sions it  contains  to  take  any  of  the  waters  tributary  to  the  Pas- 
saic,  inasmuch  as  the  same  were  already  appropriated,  under  the 
faith  of  the  legislature,  to  the  use  of  the  society. 

That  the  company,  by  their  charter,  are  prohibited  from 
using  any  waters  and  streams,  except  such  as  may  have  been 
acquired  by  gift  or  purchase,  without  first  causing  a  map  and 
survey  thereof,  and  having  the  same  appraised  ;  yet  that  the 
company  have  taken  the  waters,  as  above  stated,  without  com- 
plying with  any  of  the  prerequisites  of  their  charter  •  and  that 
no  survey,  map  or  appraisement  of  the  land  or  water  taken  to 
make  the  reservoir  at  .Long  Pond,  or  the  Pompton  feeder,  have 
been  put  on  record.  That  the  company  pretend  that  the  so- 
ciety have  no  right  to  abate  the  said  wall  and  wood-work,  be- 
cause they  say  the  land  on  which  it  stands  belongs  to  them,  the 
said  company,  the  same  having  been  appraised  by  the  com- 
missioners appointed  under  their  charter,  but  the  society  say 
that  the  said  land,  when  so  appraised,  belonged  to  R.  L.  Colt, 
who  then  resided  in  Baltimore,  and  that  no  notice  was  given 
to  him  of  the  said  appraisement ;  and  that  the  amount  thereof 
has  never  been  tendered  to  him,  or  to  the  society,  or  deposited 
in  the  Court  of  Chancery,  and  so  no  title  has  ever  been  vested 
in  the  company.  That  the  taking  lauds  without  the  interven- 
tion of  a  jury,  is  contrary  to  the  constitution  of  the  United 
States,  and  of  this  state.  That  the  society,  being  the  owners 
of  said  land,  and  never  having  given  up  or  abandoned  the  pos- 
session thereof,  had  a  right  to  enter  and  abate  the  said  wall  and 
wood -work,  especially  as  it  interfered  with  and  utterly  prevented 
the  flow  of  water  to  the  works  at  Paterson,  as  provided  for  in 
said  agreement.  That  if  the  ownership  or  possession  of  said 
land  was  not  in  them,  yet  had  they  a  right,  by  virtue  of  the 
said  agreement,  to  enter  upon  the  same,  and  to  remove  the  said 
obstruction  to  the  flow  of  the  water,  and  to  abate  the  nuisance 
thereby  created. 

The  cross- bill  prays  that  the  said  agreement  may  be  estab- 
lished, and  that  the  company,  and  all  persons  claiming  or  act- 
ing as  such,  may  be  decreed  specifically  to  perform  it,  and  to 
continue  to  perform  the  same ;  and  that  the  wall  already  erect- 


DECEMBER  TERM,  1845.  219 

Morris  Canal  and'B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

ed  may  be  abated  ;  and  that  the  company,  their  agents,  &c.,  be 
enjoined  from  again  erecting  the  same,  and  from  closing  said 
ravine,  and  from  doing  any  act  by  which  the  flow  of  the  water 
from  the  canal,  at  the  said  ravine,  to  the  river  above  the  falls, 
as  provided  for  in  said  agreement,  and  heretofore  enjoyed  by  the 
society,  can  be  in  any  way  hindered  or  prevented.  And  if,  in 
the  opinion  of  the  court,  the  company,  from  any  cause,  is  not 
bound  by  the  said  agreement,  then  that  they,  their  agents,  &c., 
be  enjoined  from  diverting  any  of  the  waters  of  the  Passaic  or 
its  tributaries,  and  from  using  the  said  reservoir  at  Long  Pond, 
or  the  waters  of  said  pond,  and  from  taking  any  of  the  waters 
of  the  Rockaway  and  Pompton  rivers  or  their  tributaries;  and 
that  the  company  may  be  decreed  to  account  to  the  society  for 
damages  already  done,  and  for  further  relief. 

On  this  cross-bill  the  society  moved  for  an  injunction  against 
the  company. 

Both  motions  were  heard  at  the  same  time. 

Depositions,  taken  on  both  sides,  were  read  on  the  hearing. 
Their  contents  are  not  noticed  in  the  opinion  given  on  these 
motions,  except  so  far  as  they  go  to  show  the  extent  of  the  dimi- 
nution of  water  in  the  mill-races  or  canals  of  the  society, 
and  the  amount  of  injury  which  the  canal  would  suffer,  if  the 
agreement  between  the  company  and  the  society  calls  for  a 
constant  flow  from  the  canal  of  three  square  feet  of  water,  as 
is  contended  for  by  the  society,  but  which  is  denied  by  the 
company. 

P.  D.  Vroom  and  George  Wood,  in  support  of  the  motions. 
They  cited  Eden  on  Inj.  141,  142  ;  1  Brown's  Chan.  Rep.  588 ; 
10  Vcsey  193  j  1  Nicholson's  Railway  Cases  173,  198  ;  1  Mylne 
and  Craig  650,  347 ;  3  Ib.  782,  783 ;  9  Simons  278  ;  Saxton's 
Ch.  Rep.  694. 

F.  T.  Frdinghuysen  and  H.  W.  Green,  contra.  They 
cited  Angell  on  Water- Courses  29;  Sazton]88;  6  Halst. 
Rep.  238 ;  1  Dickens  165 ;  2  Ib.  600  ;  2  Swanston  354  j 
16  Vesey  333;  4  Bam.  and  Cressw.  792;  1  East  48; 
2  P.  Wins.  306 ;  9  Barn,  and  Cressw.  538  ;  1  Aikin's  Ver- 
mont Rep.  264;  2  Mad.  Ch.  Rep.  356  ;  Ambler  452 ;  3  Hoist. 


220  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

149;  5  76.78;  6  Peters  738,  739;  11  Ib.  544,550,  639; 
4  Ib.  560  ;  Vattel,  Book  1,  chap.  20,  §  244  ;  Domat's  Civil  Law, 
Book  I,  title  8;  20  John.  Rep.  735;  2  Mad.  Ch.  Rep.  256, 
527;  11  Mass.  Rep.  19;  2  Kent's  Com.  278;  13  &er#.  and 
Rawle  210;  3  £/ac&  236;  5  Vcsey  734;  10  Ib.  292,  193;  8 
J6.  163;  Free,  in  Ch.  538;  2  CWs  C7i.  77;  2  Young  and 
Jarvis  172;  3  SwansZ.  108;  3  Harr.  and  MoHenry  324;  3 
Randolph  238;  2  Bibb  78;  1  J/a6.  ^p.  458;  Ambl.  209  ; 
Z>rwr2/  on  Inj.  237  ;  ^c?en  on  Inj.  157  ;  5  Fesei/  129  ;  2  Atkyns 
83  ;  1  Fesez/  140,  542  ;  2  Green's  Ch.  353  ;  1  Ify/ne  and  Keen 
154  ;  6  .En#.  Cone?.  Oh.  558  ;  3  Jfenu.  688  ;  18  Vesey  220. 


THE  CHANCELLOR.  The  question  which  lies  deepest  in 
this  controversy  is  that  which  respects  the  original  rights  of 
these  companies  under  their  respective  charters.  It  is  con- 
tended by  the  purchasers  under  the  Willink  mortgage,  that  the 
agreement  of  February  17th,  1836,  is  void  against  them,  it 
being  subsequent  to  that  mortgage  ;  and  particularly  if  the 
agreement  binds  the  canal  company  to  permit  a  constant  flow 
of  three  square  feet  of  water  at  the  ravine  ;  for  that  such  a  flow 
would  destroy  the  canal.  It  is  answered  by  the  society,  that 
if  that  agreement  is  void,  then  they  claim  to  be  remitted  to  their 
original  rights  under  their  charter  ;  and  that,  in  view  of  those 
rights,  the  canal  company  are  not  authorized  to  touch,  or  in 
any  way  interfere  with  any  of  the  head  waters  of  the  Passaic. 
To  this  the  company  reply,  that  the  legis«lature  had  the  power 
and  constitutional  right  to  authorize  them  to  take,  for  the  pur- 
poses of  the  canal,  not  only  the  lands  and  waters  of  indi- 
viduals, but  even  the  lands  and  waters  of  the  society  ;  and  that 
the  terms  of  their  charter  are  unlimited  in  this  respect.  If  this 
question  shall  be  presented  for  discussion  in  any  stage  of  this 
controversy,  it  will  be  the  duty  of  the  court  to  decide  it.  But 
certainly  this  court  would  not  be  asked,  at  this  late  day,  to 
grant  a  preliminary  injunction  against  the  canal  company, 
and  suspend  their  operations  till  a  question  like  this  shonld  be 
decided. 

As  to  the  right  of  the  canal  company  to  drop  the  waters 
they  bring  from  Lake  Hopatcong  into  the  E-ockaway,  with  the 


DECEMBER  TERM,  1815.  221 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufacture*. 

view  of  taking  an  equal  quantity  of  water  out  of  the  Rockaway 
on  the  other  side  of  it,  and  thus  saving  the  expense  of  an  aque- 
duct, the  question  has  passed  sub  judice.  This  court,  on  two 
successive  applications  for  an  injunction,  has  refused  to  act 
against  the  company  on  a  denial  of  that  right. 

As  to  that  part  of  the  cross-bill  which  asks  a  specific  perform- 
ance of  the  agreement  of  February  17th,  1836,  the  counsel  for 
the  society  do  not  contend  that  in  that  aspect  of  the  case  the 
court  should  grant  a  preliminary  injunction. 

But  it  is  said  on  the  part  of  the  society,  that  they  do  not  ask 
a  specific  performance ;  that  the  agreement  has  been  perform- 
ed ;  and  that  the  society  ask  the  interference  of  the  court  to 
prevent  the  company  from  now  repudiating  it ;  that  is  to  say, 
to  restrain  the  company  from  preventing  the  flowing  of  water 
from  the  canal  at  the  ravine,  according  to  the  terms  of  the 
agreement.  This  involves  several  questions.  One  of  these 
questions,  and  which  was  elaborately  argued  at  the  bar,  that 
is  to  say,  whether  an  injunction  could  issue  to  restrain  the  com- 
pany from  preventing  the  flow  of  water  from  the  canal,  I  do 
not  find  it  necessary  to  consider.  The  present  motions  are  de- 
nied on  other  grounds. 

What  is  the  agreement  between  the  company  and  the  socie- 
ty ?  The  society  claim  that  it  is  for  a  constant  flow  of  three 
square  feet,  unqualified  by  any  other  rule  or  consideration. 
This,  the  proof  now  before  the  court  seems  to  show,  would  de- 
stroy the  canal.  On  the  other  hand,  the  extent  of  damage  to 
the  society  by  stopping  the  flow  from  the  canal,  is  entirely  un- 
certain. The  mills  might  suffer  more  or  less,  for  a  portion  of 
the  year,  longer  or  shorter,  in  dry  seasons.  Should  not  the 
court,  under  such  circumstances,  leave  the  society  to  their 
compensation  in  damages  at  law  ?  It  is  sufficient  for  me  to  say, 
that  under  such  circumstances  I  could  not  grant  a  preliminary 
injunction. 

But  I  am  not  so  well  satisfied  that  this  agreement  calls  for  a 
constant  flow  of  any  quantity  of  water,  as  to  be  willing  to  grant 
an  injunction  on  the  society's  bill,  if  all  other  difficulties  in  the 
way  of  such  injunction  were  removed  ;  and  a  doubt  as  to  the 
correctness  of  the  society's  construction  of  the  agreement  in 
this  respect  would  be  sufficient  ground  for  denying  the  injunc- 


222  CASES  IN  CHANCERY. 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures. 

tion  asked  by  them  for  the  purpose  of  compelling  a  constant 
flow. 

If  the  agreement  does  not  call  for  a  constant  flow,  but  only 
for  a  flow  at  such  times  and  in  such  quantities  as  to  keep  the 
middle  canal  of  the  society  in  a  state  to  supply  twenty-two 
square  feet  of  water,  should  an  injunction  to  any  extent  go? 
Several  objections  are  made  to  it.  First.  That  the  present 
holders  of  the  canal,  whether  they  be  the  old  canal  company 
or  a  rara  avis  in  terris,  (in  the  language  of  Mr.  Wood;)  hold  it 
under  a  mortgage  made  prior  to  this  agreement. 

Second.  That  the  society  have  not  fulfilled  their  part  of  the 
agreement ;  but  that  they  permit  an  escape,  under  their  em- 
bankment, of  a  quantity  of  water  nearly  or  quite  equal  to  a 
flow  of  three  square  feet. 

Third.  That  there  is  no  sufficient  evidence  that  the  society 
have  not  had,  during  the  whole  season,  water  enough,  if  it 
were  properly  husbanded,  and  their  works  were  kept  tight,  ac- 
cording to  the  agreement,  to  supply  twenty-two  square  feet  for 
use  on  the  middle  canal. 

If  the  agreement  does  not  call  for  a  constant  flow,  I  am  of 
opinion  that  the  society  cannot  be  allowed  to  permit  such  an 
escape  of  water  as,  from  the  proof  now  before  the  court,  it  ap- 
pears there  is,  and  still  claim  the  flow  at  the  ravine  provided 
for  in  the  agreement.  If  it  is  impracticable  to  prevent  such 
escape,  then  it  is  impracticable  for  the  society  to  comply  on 
their  part  with  the  terms  of  the  agreement;  and  the  result  is 
simply  this,  that  the  society  are  unable  to  use  all  the  water 
three  times  over ;  which  they  might  be  able  to  do  if  they  could 
comply  with  the  terms  of  the  agreement. 

Again,  if  there  has  been  any  scarcity  of  water  at  Paterson 
this  season,  beyond  what  would  have  existed  independently  of 
the  operations  of  the  canal  company,  yet,  if  that  scarcity  was 
produced  only  by  the  filling  of  the  enlarged  canal,  and  ceased 
after  it  was  filled,  the  application  for  an  injunction  fails.  But 
it  is  by  no  means  clear,  on  the  proof  that  is  now  before  the 
court,  that  the  filling  the  canal,  this  season,  did  not  add  to, 
rather  than  diminish  the  flow  at  Paterson.  Indeed,  if  the  fill- 
ing the  canal  was  calculated  to  reduce  the  flow  to  the  falls  be- 
low the  extreme  reduction  which  was  the  necessary  result  of  so 


DECEMBER  TERM,  1845.  223 

Morris  Canal  and  B'k'g  Co.  v.  Society  for  Establishing  Useful  Manufactures 

continued  and  severe  a  drought,  it  is  difficult  to  imagine  how  the 
season  could  have  passed  with  so  little  interruption  of  the  works 
at  Paterson. 

Without  permitting  myself  to  be  drawn  further  into  the  ques- 
tions that  may  be  involved  in  other  prayers  of  the  cross-bill,  it 
seems  to  me  there  is  no  sound  equitable  principle  on  which  the 
court  can  grant  the  prayer  for  an  injunction. 

It  is  obvious  that,  in  this  view  of  the  case,  the  court  cannot 
dissolve  the  injunction  obtained  by  the  company. 

The  company's  bill  charges  that,  at  the  time  of  the  breaking 
of  the  gate  and  waste-way  at  the  ravine,  the  water  of  the  Passaic 
was  running  over  the  dam  above  the  falls  made  by  the  society 
to  divert  the  water  to  their  works ;  and  the  answer  does  not 
deny,  but  admits  the  charge. 

Under  these  circumstances,  it  seems  to  me  that  a  dissolution 
of  the  injunction  would  be  a  present  recognition  by  the  court 
of  the  right  of  the  society  to  a  constant  flow  at  the  ravine  of  three 
square  feet.  This,  as  intimated  before,  I  ain  not  now  prepared 
to  declare. 

Both  motions  are  denied. 

CIXZD  IB  AU'y-Oen.  y.  Paterson,  I  Stock.  633. 


224  CASES  IN  CHANCERY. 


Stires  v.  Stires. 


STIRES  v.  STIRES  AND  OTHERS. 


1.  In  October,  1837,  D.  S.,  being  then  seized  of  a  farm  on  which  he  lived, 
and  of  no  other  real  estate,  made  his  will,  by  which  he  directed  his  executor 
to  pay  the  debts  ont  of  his  personal  estate,  and  in  defect  thereof,  to  sell  so 
much  of  the  real  estate  as  to  pay  the  debts  ;  and  from  and  after  the  payment 
thereof,  and  subject  thereto,  then  that  the  residue  of  the  personal  estate  be 
divided  between  his  widow  and  his  nephew  D.  D. ;  and  the  rents  and  profits- 
of  his  real  estate  be  distributed  to  them  during  their  lives  ;  and  that,  on  their 
deaths,  respectively,  their  respective  shares  of  such  rents  and  profits  go  to  H. 
C.  during  his  life;  and  that,  OH  his  death,  all  the  said  real  estate  should  go 
to  the  children  of  the  said  H.  C. 

2.  In  April,  1839,  D.  S.  bought  another  farm,  and  paid  $2000  aud  odd  of 
the  purchase  money,  and  for  the  balance  gave  a  mortgage  on  the  farm  so 
bought ;  and  afterwards,  to  discharge  that  mortgage,  borrowed  moneys  on  his 
bonds,  some  of  which  existed  as  debts  against  his  estate  after  his  death. 

3.  D.  S.  died  in  October,  1841,  without  baring  altered  or  republished  his 
will. 

4.  On  the  death  of  D.  S.,  the  farm  purchased  by  him  after  making  his  will, 
descended  to  a  brother  and  nephews  and  nieces,  his  heirs-at-law.    Held,  that 
the  descended  land  was  chargeable  with  the  debts  before  the  land  devised. 


On  the  2(1  of  October,  1837,  Daniel  Stires,  being  seized  of 
a  farm  on  which  he  lived,  and  of  no  other  real  estate,  made  his 
will,  by  which  he  directed  the  executor  thereof  to  pay  all  lawful 
claims  against  his  estate  out  of  his  personal  effects;  and,  in 
defect  thereof,  to  sell  so  much  of  the  real  estate  as  to  fully  pay 
and  satisfy  all  just  claims  and  demands  ;  and  from  and  after  the 
payment  thereof,  and  subject  thereto,  then  that  all  the  rest  and 
residue  of  the  personal  estate  be  divided  between  his  widow  and 
his  nephew  Daniel  Davis ;  and  that  the  rents  and  profits  of  all 
his  real  estate  be  distributed  to  his  "widow  and  his  said  nephew, 
during  their  lives;  and  that,  on  their  deaths,  respectively,  their 
respective  shares  of  such  rents  and  profits  go  to  Henry  Cole 
during  his  life;  and  that,  on  his  death,  all  the  said  real  estate 
should  go  to  the  legitimate  issue  of  the  said  Henry  Cole.  The 
will  then  declared  the  gifts  and  bequests  therein  made  to  his 
wife  to  be  in  lieu  of  dower,  and  only  on  condition  that  she 
accepts  them  as  such. 


DECEMBER  TERM,  1845.  225 

Stires  v.  Stires. 

After  the  making  of  the  will,  on  the  9th  of  April,  1839, 
Daniel  Stires  bought  another  farm,  called  the  Hock  farm,  at 
the  price  of  $6800 ;  of  which  sum  he  paid,  in  cash,  $2267, 
and  for  the  balance  of  which  he  gave  a  mortgage  on  the  said 
Hock  farm  ;  and  to  discharge  that  mortgage,  he  afterwards  bor- 
rowed moneys  on  his  bonds,  some  of  which  are  still  outstanding 
against  his  estate. 

He  died  on  the  8th  of  October,  1841,  without  having  altered 
or  republished  his  will,  leaving  a  brother  and  nephews  and 
nieces  his  heirs-at-law. 

A  bill  was  filed  by  the  devisees  against  the  heirs-at-law  and 
the  executor,  stating  the  foregoing  facts,  and  praying  that  the 
Hock  farm  might  be  sold  to  pay  the  debts. 

The  cause  was  heard  on  a  demurrer  to  the  bill. 

H.  W.  Green  and  G.  D.  Wall,  in  support  of  the  demurrer. 
They  cited  Cowp.  90,  305;  Salk.  238;  1  P.  Wms.  575; 

2  Bl.   Com.    378;    6    Cruise's   Dig.  37;    9    John.  Rep.  313; 

3  Johns.  Ch.  Rep.  310;  5  Ibid.  441  ;  4  Kent's  Com.  (2d  edit.) 
510,  512,  421;  1    Story's   Eq.,  §    577;    1    Bro.   Chan.  Rep. 
526. 

P.  /.  Clark  and  P.  D.  Vroom,  contra.  They  cited  1  Bro. 
Ch.  Rep.  524 ;  2  Atk.  424,  431  ;  1  Mad.  Ch.  483,  492 ; 
3  Atk.  556;  1  Dickens  382;  1  Bro.  Ch.  261;  2  Ibid.  524, 
257;  3  Vesey,  114;  6  Ibid.  199;  8  Ibid.  106,  116,  122,  124, 
295 ;  4  Dess.  323 ;  3  Mad.  Rep.  453 ;  3  Johns.  Ch.  Rep.  312. 

THE  CHANCELLOR.  The  question  arising  upon  the  facts  in 
this  case  is,  whether  the  descended  lauds  or  the  devised  lands 
shall  pay  the  debts. 

The  order  in  which  assets  are  applicable  in  payment  of 
debts,  as  stated  by  Ld.  Thurlow,  is — 1st.  The  personal  es- 
tate;  2d.  Ordinarily  speaking,  estates  devised  for  the  payment 
of  debts ;  3d.  Estates  descended;  4th.  Estates  specifically  de- 
vised, though  they  are  charged  generally  with  the  payment  of 
debts.  Sir  R.  P.  Arden,  Master  of  the  Rolls,  (afterwards  Ld. 
Alvanley,)  states  the  four  classes  thus :  1st.  The  general  per- 
bonal  estate,  unless  exempted  expressly,  or  by  plain  implica- 


226  CASES  IN  CHANCERY. 

Stires  v.  Stires. 

tion  ;  2d.  Any  estate  particularly  devised  for  the  purpose  and 
only  for  the  purpose  of  paying  debts ;  3d.  Estates  descended  ; 
4th.  Estates  specifically  devised. 

The  will  in  this  case  is  nothing  more  than  a  general  charge 
on  all  the  real  estate  the  testator  had  at  the  time  of  making  his 
will,  for  the  payment  of  his  debts,  or  of  such  portion  thereof  as 
his  personal  estate  should  be  insufficient  to  pay. 

The  testator  having  acquired  lands  subsequent  to  the  making 
of  the  will,  which  on  his  death  descended  to  his  heirs-at-law, 
the  question  is,  whether  such  a  general  charge  on  all  the  estate 
he  had  at  the  time  of  making  the  will,  is  to  have  the  effect  of 
charging  the  lands  devised  subject  to  such  general  charge,  in 
exemption  of  the  after-acquired  and  descended  lands. 

At  the  making  of  the  will  the  testator  could  have  had  no 
intention  as  between  the  devised  estate  and  the  descended  estate, 
for  the  reason  that  at  that  time  he  owned  none  but  the  devised 
estate.  The  will,  then,  is  not  a  selection  or  designation  of  cer- 
tain lands  to  pay  debts,  in  exoneration  of  other  lands. 

In  Gallon  v.  Hancock,  2  AtJc.  424,  430,  decided  by  Ld. 
Hardwicke,  first  in  1742,  and  again  in  1743,  the  defendant's 
husband  being  seized  in  fee  of  an  estate,  morgaged  it  in  1724, 
to  secure  the  payment  of  a  bond  he  had  previously  given.  In 
1728,  he  made  his  will,  and  devised  to  his  wife  this  estate  in 
fee,  and  also  a  lifehold  estate.  The  will  sets  out  with  a  desire 
that  all  his  debts  may  be  paid  in  the  first  place;  and  concludes 
with  a  general  residuary  devise  to  his  wife,  whom  he  makes 
executrix.  He  afterward  bought  the  reversion  in  fee  of  the 
lifehold  estate,  and  died  without  altering  his  will.  It  was 
held  to  be  clear  that  the  purchase  of  the  reversion  after  the 
making  of  the  will  was  a  revocation  of  the  will,  pro  tanto ; 
and  consequently  this  latter  estate  descended  upon  the  heir. 
The  question  was,  whether  the  descended  estate  or  the  devised 
estate  should  pay  the  debt  secured  by  the  mortgage.  The  Ld. 
Chancellor  first  decided  that  the  devisee  should  take  the  devised 
estate  cum  onere;  but  afterwards,  on  a  re-hearing,  he  decided 
that  the  descended  lands  should  pay  the  debt. 

This  case  was  decided  in  favor  of  the  devisee,  notwithstand- 
ing the  testator  had  left  a  mortgage  on  the  estate  devised.  The 
Chancellor  said  that,  in  equity,  the  laud  is  only  regarded  aa 


DECEMBER  TERM,  1845.  227 


Slires  v.  Stires. 


security  for  the  money  ;  and  that  the  election  of  the  holder  of 
the  bond  and  mortage,  as  to  the  course  he  will  lake  to  get  his 
money,  will  not  determine  which  fund  ought  properly  to  be 
charged,  nor  vary  the  right  as  to  those  funds.  In  the  case  be- 
fore us,  there  was  no  mortgage :  the  debts  are  generally  bond 
debts,  or  simple  contract  debts  only. 

The  case  of  Powis  v.  Corbet,  in  1747,  also  decided  by  Ld. 
Hardwicke,  was  a  case  in  which  the  testator  had  created  a  par- 
ticular trust  out  of  particular  land,  for  the  payment  of  debts, 
and  subject  to  that  trust  devised  it  over.  It  was  held  that  the 
devisee  could  take  no  benefit  but  of  the  remainder  after  the 
whole  burden  upon  it  was  discharged.  In  this  case  Ld  Hard- 
wicke expressly  recognized  the  decision  in  Gallon  v.  Hancock. 

In  1780,  the  case  of  Davis  v.  Toppe,  2  Bro.  Ch.  Rep.  524. 
came  before  Ld.  Thurlow.  Toppe,  seized  of  real  estate  subject 
to  a  mortgage,  made  his  wiM,  and  as  to  his  worldly  estate,  real 
or  personal,  after  payment  of  his  debts,  disposed  thereof  as  fol- 
lows: to  his  sister,  Sarah  Lloyd,  an  annuity  for  life,  and  seve- 
ral pecuniary  legacies ;  and  charged  all  his  real  and  personal 
estate  with  the  payment  of  his  debts  and  legacies  ;  and  subject 
thereto,  devised  all  his  real  estate  to  his  nephew  for  life,  with 
remainders  over,  and  his  personal  estate  to  his  said  nephew. 
After  making  the  will  he  purchased  an  estate,  and  died  with- 
out issue,  leaving  the  said  Sarah  and  her  sister  his  heirs-at-law, 
on  whom  the  after-purchased  estate  descended.  In  this  case, 
also,  the  lands  devised  were  subject  to  a  mortgage  at  the  time 
of  the  devise,  and  remained  so  to  the  death  of  the  testator.  The 
case  of  Gallon  v.  Hancock  was  relied  upon  on  the  part  of  the 
devisees  ;  and  the  case  of  Powis  v.  Corbet  was  cited  on  the 
other  side.  In  giving  judgment,  Ld.  Thurlow  said  he  heard 
the  devisees  principally  to  obtain  a  distinction  between  Gallon 
v.  Hancock  and  Powis  v.  Corbel.  He  decides  the  case  before 
him  on  the  following  reasoning.  After  stating  that  in  Powis  v. 
Corbel  two  estates  were  in  the  possession  of  the  testator  when 
he  made  his  will,  and  that  one  was.  devised,  charged  with  a 
term  for  the  payment  of  debts,  he  says,  that  the  effect  of  the 
full  principle  of  the  decree  in  that  case,  and  in  the  case  of  Gal- 
ton  v.  Hancock,  is  simply  this  :  "  Where  a  testator  gives  tho 
whole  of  his  estate  at  the  time  of  the  devise,  subject  to  a  gene- 


228  CASES  IN  CHANCERY. 

Stires  v.  Stires. 

ral  charge,  he  means  to  give  the  devisee  all  that  can  be  saved 
of  his  affairs  after  payment  of  his  debts.  If  he  afterwards  be- 
comes possessed  of  another  estate,  thus  much  is  clear;  by 
charging  his  estate,  (that  is,  all  he  had  at  the  time,)  with  the 
payment  of  his  debts,  it  could  not  be  in  his  contemplation  to 
charge  the  estate  he  gave  in  favor  of  an  estate  which  he  had 
not.  In  such  case,  the  estate  descended,  (which  the  testator 
had  not  at  the  time,)  could  not  have  been  the  object  of  an  in- 
tention to  exempt :  whereas,  if  a  testator  has  two  estates,  and 
charges  one,  the  inference  is  that  he  means  to  exonerate  the 
other."  "  The  principle  (he  says)  which  seems  to  distinguish 
the  case  of  Gallon  v.  Hancock,  is  this :  when  a  general  charge 
is  made,  applicable  to  the  whole  estate  of  the  testator  at  the 
time,  no  intention  appears  that  the  estate  is  so  charged  with  a 
view  to  exonerate  future  property  ;  but  where  a  testator  charges 
part  of  his  estate,  leaving  other  part  (which  he  has  at  the 
time)  to  descend,  his  inclination  to  burthen  a  part  in  exonera- 
tion of  the  rest  is  manifest."  It  seems  to  me  that  this  reason- 
ing is  entirely  satisfactory. 

The  case  of  Milnes  v.  Slater,  8  Vesey,  295,  decided  by  Ld. 
Eldon,  is  not  opposed  to  this  view.  The  question  there  was, 
whether  the  will  created  only  a  general  charge,  or  a  particular 
charge  on  a  particular  fund.  The  will  declared  that  if,  at  the 
decease  of  the  testator,  there  should  be  any  mortgages  or  other 
encumbrances  affecting  his  estate  in  Bantry,  Austerfield  and 
Timberland,  or  any  of  them,  the  same  should  not  be  dischar- 
ged out  of  his  personal  estate,  but  should  remain  charged  on 
his  said  estates  respectively,  until  discharged  by  the  several 
tenants  for  life,  to  whom  the  said  estates  were  respectively  lim- 
ited. The  testator  purchased  other  estates  after  making  his 
will,  in  Bantry,  Austerfield  and  other  places,  which  descended 
to  his  heirs-at-law.  The  question  was,  whether  the  descended 
estates  should  be  applied  to  pay  the  mortgages  on  the  estates  at 
Bantry,  Austerfield  and  Timberland.  Ld.  Eldon  decided  that 
"a  real  fund  had  been  created"  in  that  case,  for  the  payment 
of  the  mortgage  debts.  He  said  that  "  a  real  fund  created " 
M'as  the  construction  he  put  on  the  term  "  selected,"  used  by 
Ld.  Alvanley,  in  Manning  v.  Spicer.  He  said  he  perfectly 
agreed  that  if  the  testator  had  done  no  more  than  generally 


DECEMBER  TERM,  1845.  229 

McK night  v.  Bobbins. 

subjecting  the  mortgaged  estates,  merely  leaving  them  subject 
as  the  law  would  if  he  had  said  nothing,  that  would  not  be 
enough  to  protect  the  descended  estates.  He  declared  his  opin- 
ion to  be,  that  the  testator  had  created  a  particular  fund  by  the 
words  of  the  above-stated  clause,  and  that  thereby  the  descend- 
ed estates  were  exonerated. 

I  will  not  go  further  into  the  cases.  They  have  all  been  re- 
viewed by  Chancellor  Kent,  in  Livingston  v.  Newkirk,  3  Johns. 
Ch.  Rep.  312;  a  case  presenting  the  very  question  raised  here, 
and  deciding  that  the  descended  lauds  were  first  liable.  It  will 
be  so  decreed  in  this  case. 

Decree  accordingly. 


JOHN  L.  MCKNIGHT  v.  VANBOOM  BOBBINS. 

A  and  B  entered  into  an  agreement  that  A  should  furnish  2700  peach  trees 
at  his  expense,  and  that  B  should  plant  and  cultivate  them  on  his  farm,  at 
his  expense,  and  should  pick  and  market  the  fruit,  during  the  life  of  the  trees, 
at  the  joint  expense  of  the  parties,  and  account  to  A  for  half  the  net  proceeds 
of  the  sales.  The  trees  were  furnished  and  planted  and  cultivated  accord- 
ingly. A  died,  and  the  administrator  of  his  estate  sold  his  interest  to  D 
Held  that  D  could  come  into  this  court  for  the  performance  of  the  agreement, 
and  for  an  account  and  payment  of  half  the  net  proceeds  of  the  sale. 


In  April,  1841,  Richard  Jaques  and  Vanroom  Robbins  en- 
tered into  an  agreement  that  Jaques  should  furnish  2700  peach 
trees  at  his  own  expense,  and  that  Robbins  should  plant  and 
cultivate  them  on  his  farm  at  his  expense,  and  should  pick  and 
market  the  fruit  at  the  joint  expense  of  the  parties  to  the  agree- 
ment, and  account  to  Jaques  for  half  the  net  proceeds  of  the 
sales.  Jaques  procured  the  trees,  and  Robbins  planted  and 
cultivated  them  according  to  the  terms  of  the  agreement. 

In  February,  1842,  Jaques  died,  intestate,  and  in  July,  1842, 
the  administrator  of  his  estate. sold  the  interest  which  Jaques 
bad  in  the  peach  orchard,  to  John  L.  McKnight. 


230  CASES  IN  CHANCERY. 

McKnight  v.  Robbing. 

On  the  llth  of  July,  1843,  McKnight  filed  his  bill,  stating 
the  agreement,  and  his  purchase  of  Jaques'  interest ;  that  the 
orchard  then  contained  a  crop  of  the  value  of  at  least  $1000, 
which  would  be  fit  for  market  about  the  1st  of  August,  there- 
after. 

The  bill  then  states  that  Bobbins  is  in  slender  circumstances, 
&c.,  and  prays  that  he  may  be  enjoined  from  picking  and  mar- 
Keting  the  fruit,  and  that  a  fit  person  be  appointed  by  the 
court  to  do  it,  for  the  benefit  of  the  complainant  and  defen- 
dant. 

On  the  19th  July,  1843,  the  Chancellor  ordered  that  Rob- 
bins  give  bond,  with  security,  in  $1000,  conditioned  to  pick 
and  market  the  growing  fruit  in  a  judicious  manner,  and  keep 
a  true  account  of  the  proceeds,  and  of  the  expenses  of  picking 
and  marketing,  and  pay  half  the  net  proceeds  according  to  the 
order  of  the  court  thereafter  to  be  made,  and  that  the  said  bond 
be  delivered  to  the  complainant,  and  that  all  further  equity  and 
directions  be  reserved. 

On  the  same  day  the  complainant  was  permitted  to  amend 
his  bill,  by  adding  a  prayer  for  the  specific  performance  of  the 
agreement;  and  that  the  defendant  account  for  the  net  pro- 
ceeds of  the  fruit,  from  year  to  year,  and  pay  over  half  thereof 
to  the  complainant. 

On  the  14th  of  February,  1844,  the  defendant  put  in  his 
answer.  A  replication  was  filed,  and  testimony  taken. 

On  the  19th  of  July,  1844,  the  defendant  was  ordered  to 
give  bond,  with  surety,  in  $3000,  conditioned  for  the  proper 
picking  and  marketing  the  fruit  then  growing,  and  in  other  re- 
spects similar  to  tike  first  bond  required  from  the  defendant. 

The  cause  was  heard  on  the  pleadings  and  proofs,  in  Septem- 
ber, 1845. 

S.  G.  Potts  and  P.  D.  Vroom,  for  complainant.  They  cited 
1  Harr.  Rep.  81  ;  1  Chitt.  Gen.  Prao.  84,  6,  7  ;  9  Barn,  and 
Cresw.  561  ;  17  Eng.  Com.  Law  443;  1  Meriv.  563;  15  Vesey 
221 ;  12  Eng.  Cond.  Ch.  228;  5  Ibid.' 383  ;  1  Paige  398  ;  17 
John.  Rep.  529;  12  Wend.  134;  23  Ibid.  606,  610;  24  Ibid. 
389;  6  Halst.  184;  1  Campb.  331;  1  Harr.  38;  Gow  on 
Partnerships;  Collins  on  Partnerships. 


DECEMBER  TERM,  1845.  231 

Seeley  v.  Price  et  al. 

Wm.  N.  Jejfers,  contra,  cited  13  Petersd.  102;  2  Harrison's 
Dig.  1554,6;  18  Vesey  300 ;  6  Mad.  145;  19  Vesey  291  ;  1 
Swanst.  114,  116;  11  Vesey  3;  17  John.  Rep.  529. 

THE  CHANCELLOR,  after  stating  the  case,  decided  that  the 
complainant  was  entitled  to  an  account,  and  payment  of  half 
the  net  proceeds  that  had  come  to  the  hands  of  Robbins  from 
the  sales  of  the  fruit ;  and  ordered  a  reference  to  take  the  ac- 
count. 


EBENEZEE  SEELEY  v.  FRANCIS  PRICE  AND  OTHERS. 

Leave  to  file  a  plea  after  demurrer  overruled,  will  not  be  granted,  if  it  is 
manifest  that  the  plea  offered,  if  true  in  fact,  would  be  no  bar  to  the  relief 
sought  by  the  bill. 

After  demurrer  overruled,  leave  was  asked  to  file  a  plea 
which  had  been  prepared.  The  motion  was  resisted.  The  bill 
and  plea  were  read. 

THE  CHANCELLOR.  It  is  manifest  that  the  plea  offered,  if 
true  in  fact,  would  constitute  no  bar  to  the  relief  sought ;  and 
that  the  only  effect  of  permitting  it  to  be  filed  would  be  delay. 

Motion  denied. 


232  CASES  IN  CHANCERY. 


Corrigan  v.  Trenton  Delaware  Falls  Co. 


ANDREW    CORRIGAN  v.  THE   TRENTON    DELAWARE    FALLS 

COMPANY. 

1.  Proceedings  under  the  "  Act  to  prevent  frauds  by  incorporated   com- 
panies," passed  February  16th,  1829. 

2.  Distribution  of  the  assets. 

3.  Character  of  assets,  whether  legal  or  equitable. 


In  May,  1843,  an  injunction  was  granted,  and  receivers  ap- 
pointed to  take  possession  of  the  property  of  *'  The  Trenton 
Delaware  Falls  Company,"  under  the  act  "  to  prevent  frauds  by 
incorporated  companies/'  passed  February  16th,  1829. 

In  November,  1843,  a  decree  was  made,  directing  the  re- 
ceivers to  make  sale  according  to  law  of  all  the  lands  and  real 
estate  of  the  company,  including  the  race-ways,  and  all  the 
chartered  rights,  privileges,  and  franchises  belonging  to  the  com- 
pany and  appertaining  to  the  said  race-ways,  (a  supplement  to 
the  above-stated  act,  passed  March  llth,  1842,  authorizes  a  sale 
of  the  chartered  rights  and  privileges  of  such  companies.) 
Nothing  was  said  in  the  decree  as  to  the  encumbrances  on  the 
lands  and  works  of  the  company,  nor  did  it  give  any  directions 
how  the  sale  should  be  made. 

The  receivers  being  of  opinion  that  under  the  said  decree  the 
property  could  not  be  sold  free  from  encumbrances,  obtained  an 
act  of  the  legislature,  passed  February  15th,  1844,  authorizing 
them  to  sell  the  real  estate,  franchises  and  works  of  the  com- 
pany, free  and  clear  of  all  encumbrances;  and  this  act  provides 
that  nothing  therein  contained  shall  be  construed  to  affect  the 
rights  of  the  several  creditors  of  the  company  to  receive  their 
share  of  the  proceeds  of  the  sale  according  to  law.  The  act,  as 
well  as  the  decree,  is  silent  as  to  any  mode  of  sale  in  reference 
to  the  encumbrances  and  the  proper  apportionment  of  the  pro- 
ceeds. 

The  receivers  sold  all  the  real  esfate  of  the  company  and 
their  chartered  rights,  at  one  bid,  to  Charles  S.  Olden,  for 
$50,000,  free  and  clear  of  all  encumbrances.  The  sale  was 
confirmed  by  the  court,  and  a  deed  given  accordingly. 


DECEMBER  TERM,  1845.  233 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

A  report  was  subsequently  made  by  the  receivers,  showing 
that,  in  addition  to  the  said  sum  of  $50,000,  they  had  received 
rents  to  the  amount  of  $2714.86,  and  that,  after  their  disburse- 
ments, <fec.,  there  remained  for  distribution  $49,751.82.  This 
account  was  confirmed,  and  an  order  was  thereupon  made  direct- 
ing the  receivers  to  ascertain  the  amount  and  order  of  priority 
of  the  mortgage  and  judgment  debts,  and  the  amount  of  the 
other  debts,  to  the  end  that  a  final  order  of  distribution  might 
be  made  according  to  law. 

The  race-way  of  the  company  runs  through  lands  north  of 
the  Assunpink,  acquired  from  different  persons,  and  crosses  the 
Assunpink,  and  extends  on  lands  lying  south  thereof. 

The  receivers  reported  the  order  and  priority  of  the  debts  as 
follows : 

1.  The  Hargous  mortgage,  on  17  acres  south  of 

the  Assunpink,  dated  November  27th,  1830,  for $3,300  00 

2.  Two  mortgages  to  the  Trenton  Bank,  on  all  the 
real  estate  of  the  company,  both  dated  April  2d,  1833, 
one  for  $4000,  and  the  other  for  $6700;  and  a  judg- 
ment against  said  company,  dated  May  22d,  1834, 

for  $6237.87 16,937  87 

3.  A  mortgage  to  Thomas  Cadwallader  and  others, 
dated  May  23d,  1834,  on  the  real  estate  north  of  the 
Assunpink,  for....  15,491  47. 

They  then  state  the  persons  who  have  presented 
certificates  said  to  be  secured  by  this  mortgage, 
amounting  in  all  to  $24,057.05. 

4.  A  note  to  the  Trenton  Bank,  dated  October  1st, 
1835,  for  $2087 ;  another  note  to  said  bank,  dated 

October  28th,  1835,  for  $3504 5,59100 

That,  to  secure  these  notes  and  the  mortgages  and 
judgment  of  said  bank  above  stated,  the  company, 
in  October,  1835,  assigned  to  the  bank  three  leases; 
one  to  S.  &  T.  J.  Stryker,  at  $450.67  per  annum  j 
one  to  James  Hoy,  at  $750  per  annum  ;  and  one  to 
J.  McKelway,  at  $166.90  per  annum. 

5.  That,  on  the  19th  of  December,  1835,  the  com- 
pany assigned  to  Wm.  Potts,  trustee,  &c.,  the  lease  to 
Fish,  Green  &  Co.,  at  the  annual  rent  of  $500,  to  secure 

VOL.  i.  p 


234  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

certain  persons  the  interest  on  their  debts;  and  that 
seven  claims  (stating  them)  have  been  presented  to  the 
receivers  under  this  assignment,  amounting  in  all  to  $4,900  00 

In  reference  to  each  of  which  the  receivers  state 
that  the  interest  has  been  paid  by  the  rents. 

6.  A  mortgage  on  certain  lands  of  the  company, 
dated  June  2d,  1836,  to  Benjamin  Fish  and  others, 
for  |9220.97  ;  under  which,  certificates  transferable 
were  issued  by  the  company  to  each  person  named  in 
this  mortgage,  stating  the  amount  due  each.  Claims 
have  been  presented  under  this  mortgage,  amounting 
to 11,269  75 

I.  A  mortgage  of  like  character  on  certain  lands 
of  the  company,  dated  June  4th,  1836,  to  Armitage 
Green  and  others,  for  $7395.45.     Claims  have  been 
presented  under  this  mortgage,  amounting  to 9,672  47 

8.  A  mortgage  on  all  the  real  estate  of  the  com- 
pany, dated  June  3d,  1837,  to  Samuel  S.  Stryker 
and    others,    for   $10,000;    reduced,   February  3d, 

1844,  to 7,016  26 

On  the  21st  of  February,  1843,  a  judgment  was 

entered  for  the  same  debt  in  the  Mercer  Pleas,  and 

execution  issued  thereon. 

Three  claims,  represented  to  be  secured    by  this 

mortgage,  were  presented,  amounting  to  said  sum  of 

$7016.36. 

9.  A  mortgage  on  all  the  real  estate  of  the  com- 
pany, dated    February  25th,  1843,  to   Richard    I. 
Bond,  trustee,  &c.,  for  $20,450.74.     Certificates  were 
issued  under  this  mortgage,  and  claims  have  been 
presented  under  it  amounting  to 4,563  49 

10.  A  judgment  of  Peter  T.  Smith  against  the 
company,  recovered  in  the  Supreme  Court,  February 

28th,  1843,  for 3,953  94 

II.  A  judgment  of  Patrick  McMahon  against  the 
company,  recovered  in  the  Supreme  Court,  February 

28th,  1843,  (same  day,)  for 507  38 

12.  A  judgment  of  Andrew  Corrigan  against  the 
company,  of  same  date,  in  Supreme  Court,  for 2,809  00 


DECEMBER  TERM,  1845.  235 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

The  receivers  further  report,  by  way  of  recommendation,  that 
each  encumbrancer  be  paid  his  whole  amount,  according  to  the 
date  of  his  encumbrance,  as  far  as  the  fund  will  go,  whether  his 
encumbrance  is  on  all  the  estate  or  only  on  a  part  of  it. 

Separate  appeals  from  the  report  were  filed  by  Peter  T.  Smith, 
Patrick  McMahori  and  Andrew  Corrigan,  judgment  creditors,  and 
by  John  McKelway,  a  mortgage  creditor  of  the  company,  in- 
terested in  the  mortgage  to  Fish  and  others,  stating  their  respec- 
tive grounds  of  appeal. 

The  exceptions  or  grounds  of  appeal  will  sufficiently  appear 
in  the  argument  of  counsel  and  the  opinion  of  the  court. 

W.  Hakted,  for  the  appellants. 

There  are  mortgage  creditors,  judgment  creditors,  and  simple 
contract  creditors.  The  question  is  as  to  the  manner  of  distri- 
buting the  fund  in  court. 

The  receivers  were  authorized  to  sell  not  only  the  real  estate, 
but  the  franchises.  The  franchises  were  not  included  in  the 
mortgages,  and  could  not  be  sold  on  execution.  The  real  estate 
and  franchises  were  all  sold  together  at  one  bid,  for  $50,000. 
The  receivers  report,  in  a  previous  report,  that  the  real  estate 
was  worth  only  $11,000.  The  report  was  confirmed.  We 
have,  therefore,  $39,000  derived  from  a  sale  of  the  franchises, 
not  available  to  the  mortgagees.  How  is  this  to  be  distributed  ? 
The  judgment  of  the  Trenton  Bank  is  prior  to  all  the  mort- 
gages, and  is  for  $17,000 ;  and  this  takes  all  the  real  estate, 
for  that  was  valued  at  only  $11,000.  The  property  mortgaged, 
therefore,  is  swept  away  by  that  judgment.  A  fund  arising 
from  the  sale  of  the  franchises,  and  not  bound  by  the  mortgages, 
is  in  court  for  distribution.  Have  the  mortgages  a  priority  on 
that  fund  ?  or  have  the  judgment  creditors  a  priority  ?  or  are 
these  assets  equitable  assets,  distributable,  pro  raid,  among  cre- 
ditors of  all  classes  ? 

He  contends  they  are  legal  assets,  and  that  the  judgment 
creditors  are  entitled  to  priority.  In  this  state,  an  equity  of  re- 
demption may  be  sold  at  law,  and  therefore  is  legal  assets. 
The  English  rule,  then,  does  not  apply  here.  Judgment  debts 
are  the  only  debts  .entitled  to  preference  here.  Our  law  knows 
no  distinction  in  favor  of  mere  special  ties.  The  real  estate,  then, 


236  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

being  swept  away  from  the  mortgagees,  they  have  only  their 
bonds  left,  and  the  judgments  are  entitled  to  priority  over 
them. 

For  the  purposes  of  this  argument,  he  admits  that  the  act 
authorizing  the  sale  free  from  encumbrances  was  constitutional, 
but  says  the  legislature  gave  no  rule  for  distribution  ;  that  they 
could  not  have  intended  to  change  priorities,  and  deprive  the 
judgment  creditors  of  their  priority.  If  th'e  legislature  intended 
to  make  the  proceeds  equitable  assets,  they  would  have  directed 
distribution  among  all  the  creditors,  ratably. 

The  Smith  and  Corrigan  judgments  were  obtained  before  the 
bill  was  filed  on  which  the  decree  in  this  case  was  made ;  and 
the  decree  does  not  authorize  a  sale  free  from  encumbrances. 
So  far  as  a  mortgage  is  a  lien  in  rem  it  has  a  preference ;  no 
further.  But  in  reference  to  funds  derived  from  other  sources, 
judgment  creditors  are  preferred  by  the  very  terms  of  the  statute 
under  which  the  bill  in  this  case  was  filed. 

The  judgment  creditors  might  have  filed  a  bill  in  this  court 
to  subject  the  franchises  to  the  payment  of  their  judgments ; 
and  on  filing  their  bill  they  would  have  obtained  a  preference. 
The  franchises  could  not  be  sold,  either  under  a  decree  of  this 
court  or  under  a  judgment  at  law.  The  legislature  made  them 
liable,  and  did  not  give  character  to  the  proceeds  of  the  sale  of 
them,  either  as  legal  or  equitable  assets.  He  contends  that  they 
are  legal  assets,  and  that  the  judgment  creditors  have  priority; 
that  a  judgment  is  a  general  lien  on  all  property,  including 
what  cannot  be  levied  on.  The  mortgagees  have  no  stand- 
ing here  in  reference  to  the  proceeds  of  the  sale  of  the  fran- 
chises. 

Next,  certain  leases  came  into  the  hands  of  the  receivers, 
and  they  received  rents  on  them.  How  are  these  rents  to  be 
distributed  ?  They  arose  from  the  lands  bound  by  our  execu- 
tions. There  is  no  pretence  that  they  are  equitable  assets. 
The  mortgagor  would  have  received  the  rents.  The  receivers 
took  them  for  the  benefit  of  the  mortgagor  and  his  creditors. 
They  are  legal  assets,  and  go  to  the  judgment  creditors. 

Next,  when  the  Sertorie  property  (seventeen  acres  south  of 
the  Assunpink)  was  purchased  by  the  company,  it  was  subject 
to  the  Hargous  mortgage  of  $3300.  He  contends  this  is  not  a 


DECEMBER  TERM,  1845.  237 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

debt  of  the  company ;  and  that  the  holder  of  the  mortgage  is 
not  a  creditor  of  the  company ;  and  that  the  purchaser  at  the 
receivers'  sale  is  liable  for  it  to  Hargous.  That  the  act  under 
which  the  receivers  sold,  authorizing  them  to  sell  free  from  en- 
cumbrances, intended  only  encumbrances  created  by  the  com- 
pany. The  purchaser  at  the  receivers'  sale  bought  subject  to 
the  mortgage. 

Mr.  H.  cited  1  John.  Ch.  Rep.  130;  2  Fonbl  403,  note  \, 
405;  1  Story's  Eg.,  §  551,  554;  4  John.  Ch.  Rep.  626,  687; 
10  Paige  43,  598;  2  Howard's  Rep.  608;  20  John.  Rep. 
554;  1  Paige  536,  637;  1  Story's  Eq.,  §  60,  64,  79,  576; 
4  Wheat.  122;  8  Ibid.  1;  7  John.  Rep.  477;  1  Bay.  Rep. 
179 ;  Domat's  Civil  Law  5 ;  2  Cranch  277 ;  Learning  and 
Spicer  427,  §  6;  Ibid.  369;  2  Dall,  310;  2  Bay.  Rep. 
38;  2  Black.  345;  Puff  end,  Book  8,  eh.  5,  §  7 ;  Qrotius, 
Book  7,  eh.  14,  art.  7,  8 ;  15  John.  Rep.  262 ;  1  Com.  Dig. 
Assets  609;  2  Story's  Eq.,  §  577;  Pree.  in  Ch.  128;  2  Fer- 
non  405,  525;  2  P.  IFms.  416.  463;  1  Bro.  Ch.  135;  1  Fer- 
non  67 ;  4  Fes.,  Jr.,  538 ;  3  Atk.  244 ;  3  Vesey  32 ;  5  Ibid. 
438;  2  F«s.  and  Beam  252;  1  Green's  C/t.  Rep.  516; 
1  Swans*.  573;  3  Halst.  317;  2  £ro.  Ch.  57,  101,  152; 
3  John.  Ch.  229,  253;  4  Peters'  Rep.  121;  13  J&ie/.  464; 
Cases  Temp.  Talbot  224  ;  3  Paige  517  ;  1  /ScAo.  and  Lef.  236  ; 
10  John.  Rep.  517,  532  ;  2  Pai#e  867  ;  2  Stuart  378  ;  1  Dick- 
ens 150;  Williams  on  Ex'rs  660,  1034;  Salk.  42;  7  Pai^e 
477;  9  J5arn.  and  Cressw.  156,  160;  Ram.  on  Assets  184, 
317,  143-9. 

S.  G.  Potts,  contra.  On  the  14th  of  October,  1843,  the  re- 
ceivers made  a  report  that  the  debts  amounted  to  $120,000; 
that  the  rents  uuassigned  were  $4779 ;  and  that  the  value  of 
the  real  estate  was  $11,100.  November  6th,  1843,  the  court 
made  an  order  directing  the  receivers  to  sell  all  the  real  estate 
and  the  franchises.  On  the  16th  of  February,  1844,  before  the 
sale  was  made,  the  legislature  passed  an  act  authorizing  the 
receivers  to  sell  free  from  encumbrances.  The  receivers  sold 
accordingly ;  and  the  whole  property  was  sold  together  for 
$50,000.  The  receivers  then  made  the  report  from  which  these 
appeals  have  been  taken. 


233  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

In  that  report  the  receivers  adopted  this  principle,  that  the 
judgments  and  mortgages  are  liens  on  the  whole  fund,  and  are 
entitled  to  priority  according  to  their  respective  dates. 

It  is  contended  that  the  $50,000  is  the  product  of  two  dif- 
ferent kinds  of  property,  viz.,  the  real  estate,  valued  at  $11,100, 
and  the  product  of  the  sale  of  the  franchises,  $39,000  ;  and  that 
the  judgments  are  entitled  to  be  first  paid  out  of  the  proceeds 
of  the  franchises,  and  that  the  mortgages  are  only  entitled  to  the 
$11,100.  This  he  opposed.  He  does  not  go  into  the  doctrine 
of  legal  and  equitable  assets,  believing  that  the  contest  will  be 
settled  before  reaching  that  question.  If  the  property  sold  was 
subject  to  the  mortgages,  the  product  of  the  sale  is  so  subject, 
and  the  report  is  right. 

By  the  act  of  incorporation,  the  company  have  power  to  convey 
their  property,  with  the  privileges  granted  by  the  act.  By  the 
terms  of  the  mortgage,  the  company  mortgaged  the  land,  race- 
way, water,  and  the  right  to  take  water  from  the  Delaware. 

A  power  to  convey  includes  a  right  to  mortgage.  Saxton  18. 
The  mortgages,  then,  are  liens,  not  only  on  the  lands,  but  on 
the  privileges,  and  on  the  right  to  improve  and  make  profit  of 
the  works.  The  decree  authorized  the  sale  of  the  lands  and  all 
the  rights,  privileges,  and  franchises  of  the  company ;  and  the 
act  of  February,  1844,  authorized  the  sale  of  the  real  estate, 
franchises,  and  works. 

The  report  of  the  receivers,  valuing  the  real  estate,  is  no 
authority  here.  It  cannot  be  true,  because  the  receivers  state 
the  annual  rents  are  $8000.  They  must  have  excluded  the 
race-way,  as  mere  land  covered  with  water,  and  worth  nothing 
as  such.  It  cannot  be  supposed  that  $11,100  was  the  value  of 
the  company's  property.  Debts  to  the  amount  of  $120,000 
were  incurred  upon  it. 

The  error  is  in  classing  the  franchises  as  personal  property. 
The  things  granted  by  the  act  were,  1st,  to  exist  as  a  corpora- 
tion ;  2d,  to  improve,  &c.,  and  draw  water  from  the  Delaware 
to  make  a  water-power.  The  first  class  of  franchises  are  politi- 
cal, and  cannot  be  sold.  The  second  class  are  property  fran- 
chises, and  may  be  sold,  and  were  sold.  The  act  of  1844  cre- 
ated a  new  company,  by  a  new  name.  The  political  franchises 
of  the  old  company  were  not  destroyed. 


DECEMBER  TERM,  1845.  239 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

If  the  purchasers  at  the  receivers'  sale  bought  the  political 
franchises  of  the  old  company,  then  they  must  be  the  old  com- 
pany, and  are  liable  for  its  debts.  The  second  class  of  fran- 
chises are  property  franchises,  and  these  passed  by  the  sale. 

The  estate  sold  consisted  of  the  lands,  race-way,  water,  and 
rights  appurtenant  to  the  estate,  and  necessary  to  its  enjoyment. 
And  this  was  nothing  more  nor  less  than  the  estate  mortgaged. 
These  rights  and  privileges  had  been  used  ;  the  dam  was  erect- 
ed ;  the  head  and  tail  races  made,  and  the  water  drawn  ;  and 
the  mortgages  were  of  the  property,  and  these  improvements, 
and  the  right  to  draw  the  water.  It  cannot  be  doubted  that 
this  was  the  idea  of  the  mortgagors  and  the  mortgagees.  The 
language  of  the  mortgages  is  as  broad  as  possible. 

This  class  of  franchises  may  be  sold  ;  and  if  the  legislature 
think  the  principle  of  succession  necessary,  they  may  give  the 
purchasers  the  political  franchises.  If  a  toil-bridge  be  mort- 
gaged, and  sold  under  the  mortgage,  would  not  the  purchaser 
acquire  the  right  to  take  toll  ?  In  reference  to  the  property  iti 
this  case,  the  whole  value  of  it  is  the  right  to  take  the  water, 
and  the  improvements  made  for  the  purpose  of  taking  it,  for 
use  as  water  power. 

By  the  franchises  authorized  by  the  legislature  to  be  sold, 
property  franchises  only  are  intended.  If  this  be  so,  the  $50,000 
is  the  proceeds  of  the  property  mortgaged,  and  is  to  be  distri- 
buted among  the  mortgage  and  judgment  creditors,  according 
to  their  respective  priorities.  The  property,  as  it  stood  at  the 
time  of  the  sale,  was  the  product  of  the  moneys  borrowed  on 
these  mortgages.  The  mortgagees  lent  the  money  to  construct 
the  work  and  acquire  the  water  power.  Shall  they  have  the 
security  of  a  dry  ditch  only  ? 

There  never  was  just  such  a  fund  in  court  to  be  distributed. 
We  shall  meet  with  a  sea  of  difficulties  if  we  attempt  to  travel 
the  road  pointed  out  by  the  opposite  counsel.  That  counsel 
says  there  are  two  funds ;  one  real,  i.  e.,  lands ;  the  other  per- 
sonal, i.  e,  franchises.  And  the  foundation  of  this  distinction 
is  a  loose  saying  in  the  report,  that  the  real  estate  was  worth 
only  $11,100. 

The  property  on  which  the  canal  is  was  taken  by  appraise- 
ment, and  the  amount  of  the  appraisement  is  $35;000.  There 


240  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

are  no  data  by  which  the  court  can  solve  the  question  how 
much  of  the  $50,000  was  bid  for  the  land,  and  how  much  for 
the  works  and  property  franchises.  The  object  of  the  legisla- 
ture in  granting  the  act  of  incorporation,  was  to  create  a  public 
work  ;  and  by  the  act  of  February,  1844,  directing  the  sale, 
and  constituting  a  new  company,  they  intended  to  preserve  it 
entire.  Its  value  was  as  an  entirety. 

It  may  be  asked,  if  the  mortgages  embraced  all  the  land  and 
the  property  franchises,  why  was  it  necessary  for  the  legislature 
to  interfere  ?  Answer  :  Here  is  a  title  novel  in  its  character.  A 
question  might  arise  among  the  bidders,  whether  the  purchaser 
would  get  the  right  to  keep  up  the  dam,  &c.,  and  draw  water. 
If  a  doubt  exisited,  the  creditors  would  suffer.  This  was  a 
sufficient  reason  for  the  legislature  to  interfere  and  provide  for 
the  sale  of  the  property  franchises.  These  are,  in  terms,  ex- 
pressly included  in  the  mortgages  ;  and  the  $50,000  is  the  pro- 
ceeds of  the  mortgaged  premises. 

It  was  next  insisted  by  the  opening  counsel,  that  the  rents 
received  by  the  receivers  were  legal  assets,  and  belong  to  the 
judgment  creditors.  We  admit  they  are  legal  assets;  but  say, 
1st.  That  the  incidental  expenses  have  exhausted  them  ;  2d.  If 
they  were  in  court,  they  would  be  applicable,  first  to  pay  the 
bank  judgment;  the  bank  being  both  a  mortgage  and  judg- 
ment creditor  prior  to  the  Cadwallader  mortgage,  the  rents 
should  go  to  the  bank  judgment,  in  aid  of  the  claimants  under 
that  mortgage,  the  judgment  of  the  appellants  being  subse- 
quent to  that  mortgage.  3d.  The  Stryker  judgment  is  prior  to 
the  judgments  of  the  appellants,  and  would  take  the  rents  ;  and 

the  holder  of  it  is  not  here  complaining. 

\ 
P.  D.  Vroom,  in  behalf  of  the  Hargous  mortgage,  now  held 

by  McCall,  and  of  the  purchasers. 

The  McCall  mortgage  was  an  encumbrance  on  the  property 
when  it  was  purchased  by  the  company,  and  the  money  due 
on  it  was  a  part  of  the  purchase  money.  The  company  be- 
came bound  to  indemnify  the  vendor.  They  paid  the  interest 
to  the  spring  of  1842. 

The  receivers  reported  this  as  an  encumbrance  on  the  property 
at  I  he  time  of  the  sale,  to  be  first  paid. 


DECEMBER  TERM,  1845.  241 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

It  is  objected,  1st.  That  it  is  not  the  debt  of  the  company, 
but  the  personal  debt  of  the  mortgagor  ;  that  the  bond  is  not 
extinguished.  2d.  That  the  company  bought  only  the  equity 
of  redemption  ;  and  that  the  receivers  sold  nothing  more,  and 
sold  subject  to  this  mortgage. 

He  answers,  1st.  This  was  the  property  of  the  company. 
The  fee  was  theirs,  as  much  as  if  they  had  bought  it  free  from 
encumbrance  and  then  put  a  mortgage  on  it.  And  the  receivers 
reported  it  to  the  court,  the  creditors  and  the  public,  as  a  part 
of  the  real  estate  of  the  company. 

2d.  The  order  for  the  sale  was  to  sell  the  property  of  the 
company.  Before  the  sale  was  made,  the  legislature,  for  obvi- 
ous reasons,  interposed,  and  directed  the  sale  to  be  made  free 
from  encumbrances.  The  title  to  be  given  to  the  purchasers 
was  to  be  free  from  encumbrances.  The  terms  of  the  act  are 
"  as  good  a  title  as  the  company  had,  free  from  encumbrances." 
Not  from  encumbrances  made  by  the  company,  but  from  all 
encumbrances.  Now,  what  title  had  the  company  ?  If  it  was 
a  fee,  that  title  passed  free,  &c.  If  the  act  had  said  nothing  of 
the  title  to  be  given,  the  question  might  have  come  up.  But 
the  power  and  language  of  the  legislature  reaches  over  all  the 
objections.  Was  not  the  property  sold  free  from  encumbrances 
made  by  the  company  ?  Ou  what  principle?  Simply  because 
the  legislature  ordered  it  to  be  so  sold. 

The  purchasers  bought  the  property  on  the  terms  mentioned 
in  the  act.  Are  they  to  pay  this  mortgage  in  addition  to  what 
they  bid?  The  act  gives  one  rule  as  to  all  the  mortgages.  It 
would  be  a  surprise,  not  to  say  a  fraud  on  the  purchasers,  to 
charge  them  with  this  mortgage.  The  act  was  not  necessary 
to  sell  the  property.  The  object  of  tire  act  was  to  give  confi- 
dence to  bidders ;  to  sell  the  whole  property  and  title ;  and  to 
give  the  purchasers  a  title  free  from  all  encumbrances. 

This  view  does  no  injustice  to  the  appellants;  for,  if  sold 
subject  to  the  mortgage,  the  property  would  have  brought  so 
much  the  less.  If  the  property  had  been  sold  by  the  sheriff,  or 
by  the  receivers  without  the  act,  grave  questions  would  have 
arisen.  But  the  act  removed  all  difficulties.  Were  the  bidders 
to  inquire  who  put  on  the  encumbrances? 

There  is  no  dispute  that  the  property  covered  by  this  mort- 


242  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

gage  is  worth  more  than  the  mortgage  on  it.  It  is  put  down  by 
the  receivers  as  part  of  the  realty,  at  $10,000. 

This  mortgage  was  the  debt  of  the  company  in  respect  of 
that  land.  The  authorities  on  the  other  side  do  not  alter  the 
equitable  rights  of  the  parties.  True,  the  company  did  not  be- 
come the  legal  debtor,  but  they  were  in  equity  bound  to  in- 
demnify the  mortgagor. 

It  is  not  a  question  made  by  McCall,  whether  the  legislature 
could  take  his  fund,  or  the  land  mortgaged  to  him.  McCall 
submits,  and  comes  here  for  his  portion  of  the  fund.  Has  he 
not  a  right  to  come  here  and  say  he  will  take  the  money?  If 
McCall  had  filed  his  bill  against  the  purchasers,  a  question 
might  have  arisen  whether  the  legislature  could  direct  a  sale 
free  from  his  mortgage.  But  he  foregoes  it  and  comes  here, 
and  the  value  of  the  land  being  more  than  equal  to  his  mort- 
gage, he  is  entitled  to  the  amount  of  his  mortgage.  By  this 
construction  no  one  sustains  loss ;  and  it  was  for  the  benefit  of 
the  after  creditors  that  the  property  should  be  sold  in  this  way. 

Mr.  Vroom  spoke  also  to  the  first  question  argued  by  Mr. 
Potts,  and  concurred  in  his  views.  He  said,  also,  that  if  the 
property  had  been  sold  simply  under  the  mortgages,  the  pur- 
chasers would  have  taken  all  the  property,  dams,  embankments, 
&c.,  and  the  right  to  use  them,  the  same  as  the  company  had 
the  right;  and  could  enjoy  it  all  without  being  incorporated. 
The  old  company  would  still  exist,  but  their  property  would  be 
gone. 

The  act  conferred  new  political  franchises  on  the  purchasers. 
The  purchasers  hold  their  political  rights  under  the  act.  But 
if  it  should  be  supposed  they  hold  their  political  rights  under 
the  sale  made  by  virtue  of  the  act,  how  much  more  was  bid  OQ 
that  account?  The  question  is  answered  by  asking  how  much 
it  would  cost  to  get  an  act  of  incorporation.  He  presents  this 
alternative  view,  but  submits  that  the  view  taken  by  Mr.  Potts 
is  the  correct  one. 

Mr.  Halsted,  in  reply 

THE  CHANCELLOR.  The  mode  suggested  by  the  counsel 
for  the  appellants  for  ascertaining  the  product  of  the  sale  of  the 


DECEMBER  TERM,  1845.  243 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

franchises,  cannot  be  adopted.  The  tract  of  seventeen  acres, 
south  of  the  Assunpink,  was  valued  by  the  receivers  at  $10,000, 
and  all  the  rest  of  the  real  estate  of  the  company  at  only  $1100. 
It  is  evident  the  receivers  valued  the  land  occupied  by  the  canal, 
race-ways,  and  their  banks,  as  mere  land.  The  canal  and  race- 
ways cost  the  company  some  $75,000. 

Is  there  any  other  mode  of  ascertaining  the  product  of  the 
sale  of  the  chartered  rights,  as  distinct  from  the  proceeds  of  the 
sale  of  the  real  estate?  Certainly  none.  The  product  of  the  re- 
ceivers' sale,  therefore,  is  an  entire  fund,  of  one  character.  They 
are  not  equitable  assets,  distributable  pro  raid  among  creditors 
of  all  classes.  The  counsel  on  both  sides  admit  they  are  to  go 
to  the  mortgage  and  judgment  creditors  according  to  law.  The 
difficulty  is  as  to  the  legal  priorities. 

Several  of  the  mortgages  cover  the  whole  property  of  the 
company,  and  several  cover  only  separate  parts  of  it.  It  is 
clear  that,  so  long  as  the  sale  stands,  and  the  decree  confirming 
it,  it  being  a  sale  of  the  whole  property  together  for  an  entire 
sum,  it  is  impossible  to  adopt  any  other  order  of  priority  than 
the  dates  of  the  respective  encumbrances.  The  receivers  might, 
possibly,  have  sold  in  such  parcels  as  would  have  enabled  them 
to  give  to  each  encumbrancer  his  share  "according  to  law,"  iu 
reference  to  the  liens  on  the  different  parts  and  on  the  whole 
and  the  dates  of  the  liens.  But  the  race-way  and  the  franchises 
appurtenant  thereto  could  not  be  sold  separately  with  any  pro- 
priety, nor  the  canal  and  race-ways  sold  iu  parts.  The  legisla- 
ture, therefore,  in  directing  that  the  several  creditors  should  re- 
ceive their  respective  shares  of  the  proceeds  "according  to  law," 
could  not  have  understood  these  words  to  have  the  meaning 
before  referred  to.  As  the  sale  was  made,  and  contemplated  by 
the  legislature  to  be  made,  there  was  no  law  remaining  accord- 
ing to  which  the  proceeds  of  the  sale  could  be  distributed,  but 
the  law  of  priority  in  date  of  encumbrance.  All  other  law  is 
absolutely  precluded  and  excluded. 

Oa  this  part  of  the  case,  therefore,  the  decree  confirming  the 
sale  is  the  law  of  the  case,  and  no  rule  of  distribution  exists 
t-xci'pt  the  one  adopted  by  the  receivers. 

The  m-xt  subject  of  inquiry  is  No.  4  in  the  report  of  the  re- 
ceivers. The  lessors,  the  company,  assign  the  reuU  to  accrue 


244  CASES  IN  CHANCERY. 

Corrigan  v.  Trenton  Delaware  Falls  Co. 

on  certain  leases,  as  security  for  the  payment  of  their  notes. 
Does  this  constitute  a  lien  on  the  fund  in  court  for  the  amount 
of  the  notes,  in  preference  to  subsequent  mortgage  and  judg- 
ment creditors  ?  I  cannot  see  that  it  does. 

No.  5  in  the  report  of  the  receivers  is  a  claim  of  the  same 
kind. 

Next,  the  rents  received  by  the  receivers  go  to  the  judgment 
creditors.  The  Trenton  Bank  has  the  first  judgment,  which  \s 
a  lien  on  the  whole  fund  in  court,  as  well  the  proceeds  of  the 
receivers'  sale  as  these  rents. 

Next  in  priority  of  date  is  a  mortgage,  whose  lien  is  only  on 
the  proceeds  of  the  receivers'  sale,  and  not  on  these  rents. 

Next  in  priority  of  date  is  a  judgment  creditor,  whose  lien  is 
tlso  on  the  whole  fund  in  court,  including  the  rents.  The  fund 
in  court,  exclusive  of  the  rents,  is  sufficient  to  pay  the  bank 
judgment  and  part  of  the  mortgage.  Is  it  the  duty  of  the  court 
to  apply  the  rents  to  the  payment  of  so  much  of  the  bank  judg- 
ment, iu  aid  of  the  mortgage,  and  in  prejudice  of  the  subsequent 
judgment  creditor  ? 

It  is  so  claimed  on  the  part  of  the  mortgagee.  I  think  not. 
The  equity  of  the  mortgagee  is  not  more  than  equal  to  that  of 
the  subsequent  judgment  creditor,  and  between  equal  equities 
the  court  does  not  interfere. 

The  next  inquiry  relates  to  the  Hargous  mortgage,  now  held 
by  McCall,  on  seventeen  acres  of  land  south  of  the  Assunpink, 
through  which  the  race-way  runs.  This  mortgage  was  on  the 
property  when  the  company  bought  it.  It  is  contended  by  the 
counsel  for  the  appellants,  that  the  purchaser  at  the  receivers' 
Bale  bought  subject  to  this  mortgage,  and  that  it  should  not  be 
paid  out  of  the  proceeds  of  that  sale.  It  seems  to  me  that  the 
legislature,  by  the  act  of  February,  1844,  intended  that  the 
purchaser  at  the  receivers'  sale  should  take  the  property  of  the 
company  free  from  all  encumbrances  whatever.  That  McCall 
might  compel  the  payment  of  the  bond  by  Hargous,  the  obli- 
gor and  mortgagor,  notwithstanding  the  act,  and  the  sale  under 
it,  would  make  no  difference  in  this  court.  In  that  case,  Har- 
gous would  be  let  in  upon  the  fund  for  the  amount  paid  by  him. 
There  may  be  something  extraordinary  in  the  nature  and  pro- 
visions of  the  act  of  February,  1844,  but  our  present  inquiry 


DECEMBER  TERM,  1845.  245 

Campfield  y.  Johnson. 

relates  simply  to  the  distribution  of  the  fund;  and  we  have 
nothing  to  do  but  to  carry  out  what  seems  to  be  the  intention  of 
the  act. 

The   exception   to  certificates   for  interest  upon    interest,  to 
holders  of  claims  under  some  of  the  mortgages,  is  allowed. 


CALVIN  CAMPFIELD  v.  PETER  A.  JOHNSON. 

1.  A  judgment  creditor  of  a  trustee  restrained  from  selling  his  title  and  in- 
terest  in  the  trust  property  by  execution. 

2.  J.  C.  mortgaged  lands  to  C.  C.,  and  afterwards  conveyed  the  lands  to  C. 
C.,  in  trust  to  apply  the  rents  and  profits  towards  paying  the  mortgage  and 
a  certain  note  given  by  J.  C.  to  P.  S.,  until  a  sale  could  be  made  of  the  prem- 
ises at  a  fair  price,  and  then  to  sell  the  same,  or  any  part  thereof,  to  pay  the 
mortgage  and  the  note,  and  to  pay  the  residue  of  the  proceeds  of  the  sale  to 
J.  C. 

3.  C.  C.  went  into  possession  of  the  lands.    J.  C.  afterwards  died  intestate, 
leaving  infant  heirs.     C.  C.  assigned  the  mortgage  to  P.  A.  J.,  who  filed  his 
bill  of  foreclosure  thereon. 

4.  Pending  the  foreclosure  suit,  P.  A.  J.  recovered  judgments  at  law  against 
C.  C.  on  his  personal  liabilities,  and  caused  executions  to  be  levied  on  "  all 
the  right,  title  and  interest"  of  C.  C.  in  the  premises  so  conveyed  to  him  in 
trust.    On  bill  filed  by  C.  C.,  sale  under  the  said  levies  was  enjoined.     And 
on  motion  to  dissolve,  without  answer,  the  injunction  was  retained. 

I  On  the  20th  of  March,  1830,  Jonathan  Campfield,  since 
deceased,  executed  to  Calvin  Campfield  a  mortgage  on  three 
tracts  of  land  in  Morris  county,  to  secure  a  bond  of  the  same 
date,  given  by  the  said  Jonathan  to  the  said  Calvin,  conditioned 
for  the  payment  of  $2000. 

On  the  18th  of  October,  1833,  Jonathan  Campfield  and  his 
wife  executed  to  the  said  Calvin  a  deed  for  the  mortgaged  prem- 
ises, in  trust  to  apply  the  rents  and  profits  towards  paying 
the  said  encumbrance  and  a  certain  note  held  by  Polly  Sayre, 
until  a  sale  could  be  made  of  the  premises  at  a  fair  price,  and 
then  to  sell  the  same,  or  any  part  thereof,  towards  paying  the 
said  mortgage  and  note,  and  the  residue  of  the  proceeds  to  pay 
over  to  the  said  Jonathan,  or  as  he  should  direct ;  and  in  case 
the  premises  should  not  be  sold  before  the  mortgage  became  due, 


246  CASES  IN  CHANCERY. 

Carapfield  v.  Johnson. 

then  to  mortgage  the  premises  again  or  sell  the  same,  to  pay  the 
said  mortgage  and  note. 

On  the  5th  of  March,  1834,  Calvin  Campfield,  as  such  trus- 
tee, conveyed  one  of  the  said  tracts,  a  seventy-acre  tract,  to  Alfred 
Ford,  by  deed  executed  by  the  said  Calvin  and  his  wife.  Ford 
afterwards  conveyed  a  part  of  this  tract  to  Lewis  Johnson,  and 
the  residue  of  it  to  Joseph  Cutler. 

Jonathan  Campfield,  the  mortgagor,  died  in  Pennsylvania, 
leaving  two  infant  sons,  Jonathan  and  George,  his  heirs-at-law, 
and  a  widow,  Martha,  who  has  since  intermarried  with  William 
Craig. 

On  the  26th  of  October,  1844,  Peter  A.  Johnson  filed  his  bill 
of  foreclosure  on  the  said  mortgage,  stating  the  foregoing  facts, 
and  that  the  said  Calvin  Campfield  has  assigned  the  mortgage 
to  him. 

The  bill  states  that  the  complainant  is  informed  and  believes 
that  Charles  Ford,  a  judgment  creditor  of  Alfred  Ford,  insists 
that  Calvin  Campfield  conveyed  the  said  premises  to  Jonathan 
Campfield,  and  took  from  him  the  said  mortgage  for  the  purpose 
of  defrauding  the  creditors  of  the  said  Calvin. 

Calvin  Campfield,  the  widow  and  infant  heirs  of  Jonathan 
Campfield,  and  others,  were  made  defendants.  Calvin  Camp- 
field  put  in  his  answer  to  the  bill. 

In ,  1845,  Calvin  Campfield  filed  his  cross-bill,  stat- 
ing, among  other  things,  that  on  the  14th  of  April,  1830,  a  judg- 
ment was  entered  against  him  in  favor  of  Peter  A.  Johnson,  for 
$890.16  ;  and  that  Johnson  has  caused  execution  to  be  issued 
thereupon, and  to  be  levied  on  "all  the  right,  title  and  interest" 
of  him  the  said  Calvin  in  the  said  three  tracts  of  land  described 
in  the  said  mortgage. 

That  in  1838,  Johnson  recovered  another  judgment  at  law 
against  him,  on  a  note  for  $130,  and  that  he  has  caused  execu- 
tion to  be  issued  thereupon,  and  levied  on  "all  the  right,  title 
•ind  interest  "of  him  the  said  Calvin  in  the  said  three  tracts  of 
land,  and  caused  a  sale  thereof  to  be  advertised  for  the  21st  of 
July,  1845. 

This  bill  further  states  that  when  he,  Calvin  Campfield,  in 
March,  1834,  conveyed  the  seventy-acre  tract  to  Alfred  Ford, 
tl>',-  .said  Alfred,  with  one  Henry  Ford,  gave  a  bond  conditioned 


DECEMBER  TERM,  1845.  247 

Cumpficld  v.  Johnson. 

for  Ihe  payment  of  the  said  mortgage  in  one  year,  and  to  in- 
demnify Jonathan  Campfield  ;  and  that  that  bond  has  not  been 
paid.  That  if  the  said  seventy  acre  tract  was  sold  on  a  final 
decree  of  this  court,  free  from  embarrassments,  it  would  bring 
more  than  enough  to  satisfy  all  that  may  be  found  due  Johnson 
on  the  mortgage,  leaving  the  other  tracts  free  for  the  said  in- 
fant", and  charges  that  the  object  of  Johnson  in  selling  under 
the  said  executions  and  levies  is,  to  buy  at  a  nominal  sum,  and 
get  possession,  and  that  such  sale  can  only  serve  to  embarrass 
'ie  title. 

Calvin  Campfield  is  in  possession  of  the  other  two  tracts  de- 
scribed in  the  mortgage. 

This  bill  also  states  facts  on  which  a  charge  is  founded,  that 
the  assignment  of  the  said  bond  and  mortgage  was  fraudulently 
obtained  by  Johnson,  from  the  agent  of  the  said  Calvin,  without 
consideration  ;  and  also  states  facts  on  which  charges  are  founded, 
that  the  said  judgments  were  fraudulently  obtained. 

This  bill  prays  that  the  said  judgments  may  be  set  aside,  and 
that  the  said  Johnson  may  be  decreed  to  deliver  up  to  the  said 
Calvin  the  said  bond  and  mortgage;  and  an  account  of  all 
moneys  that  Johnson  may  have  received  from  Ford  on  the  said 
bond  and  mortgage ;  that  the  said  seventy -acre  tract  may  be 
sold  by  the  order  of  this  court,  &c. ;  and  that,  in  the  meantime, 
Johnson  and  the  sheriff  may  be  restrained  by  injunction  from 
selling  under  the  said  executions  and  levies. 

The  injunction  was  granted.  A  motion  was  made,  without 
answer,  to  dissolve  the  injunction. 

J.  J.  Scofald  and  /.  W.  Miller,  in  support  of  the  motion. 
S.  Scudder  and  W.  Pennington,  contra. 

THE  CHANCELLOR.  On  this  motion  the  transaction  out  of 
which  the  mortgage  grew  must  be  taken  to  have  been  bona 
fide,  and  the  mortgage  and  the  subsequent  conveyance  by  the 
mortgagor  to  the  mortgagee,  in  trust  for  the  purposes  stated  in 
the  pleadings,  to  be  valid.  And  the  motion  will  be  considered, 
too,  as  if  the  infant  heirs  of  the  mortgagor  were  properly  repre- 
sented. 


248  CASES  IN  CHANCERY. 

Campfield  v.  Johnson. 

The  question  now  before  us  is  not  whether  Johnson  properly 
obtained  possession  of  the  bond  and  mortgage  ;  nor  whether 
the  judgments  obtained  by  Johnson  against  Calvin  Campfield 
should  be  set  aside.  It  is  whether  Johnson,  while  proceeding 
to  foreclose  the  mortgage,  shall  be  permitted  to  sell,  on  judg- 
ments against  Calvin  Campfield  on  his  own  personal  liabilities, 
the  legal  estate  held  by  him-  in  trust  for  the  purposes  stated  in 
the  pleadings. 

I  think  the  cestuis  que  trust  should  be  protected  from  such  a 
proceeding.  It  was  said  in  argument,  that  Johnson  has  the 
right  to  sell,  under  the  judgments,  the  interest  of  Calvin  Camp- 
field  in  these  lands,  and  then  to  have  a  jury  pass  on  what  that 
interest  is;  that  is,  to  take  the  ground  that  the  whole  transac- 
tion of  the  conveyance  by  Calvin  to  Jonathan,  and  the  mort- 
gage and  deed  in  trust  from  Jonathan  to  Calvin,  were  fraud- 
ulent and  void  as  against  creditors.  This 'is  not  the  right  way 
of  getting  into  that  controversy. 

Johnson's  own  bill,  the  foreclosure  bill,  sets  out  the  trust,  on 
which  the  conveyance  from  Jonathan  to  Calvin,  after  the  giving 
of  the  mortgage,  was  made. 

A  trustee  cannot  dispose  of  a  trust  estate  as  his  own  estate, 
unless  to  a  bona  fide  purchaser  without  notice.  If  he  do,  the 
estate  may  be  followed. 

Calvin  Campfield  has  no  title  or  interest  which  he  could  con- 
vey to  Johnson,  in  payment  of  his  own  debt.  Johnson,  there- 
fore, cannot  be  permitted  to  sell  his  title  and  interest  on  execu- 
tion. To  allow  him  to  do  so  could  only  have  the  effect  of  em- 
barrassing the  interest  and  estate  of  those  beneficially  interested. 

Motion  denied. 


DECEMBER  TERM,  1845.  249 

Hamburgh  Manufacturing  Co.  v.  Edsall. 


THE  HAMBURGH  MANUFACTURING  COMPANY  AND  OTHERS 
v.  JOSEPH  E.  EDSALL,  ELIAS  L'HOMMEDIEU  AND  OTHERS. 


1.  A  sheriff's  pale  of  land   declared  unlawful  by  reason  of  means  used  to 
prevent  competition,  and  the  consequent  sacrifice  of  the  property. 

2.  Several  executions  had  been  levied  by  a  sheriff  on   the  lands  of  "The 
Hamburgh  Manufacturing  Company,"  of  which  the  first  in  priority  was  in 
favor  of  E.     The  same  sheriff  had  in  his  hands,  at  the  same  time,  an  execu- 
tion issued  on  a  decree  in  chancery,  on  the  first  mortgage,  for  the  sale  of  the 
mine  farm  of  "  The  Clinton  Manufacturing  Company,1'  and  also   an  execu- 
tion at  law  against  the  said  Clinton  company,  by  virtue  of  which  he  had 
levied  on  the  said  Clinton  company's  mine  farm.   E.  held  a  subsequent  mort- 
gage on  this  Clinton  mine  farm.     Prior  to  the  sale,  certain  creditors  of  the 
Hamburgh  company,  having  no  judgments,  together  with  E.,  entered  into  an 
agreement  in  writing,  among  themselves,  that  L.,  one  of  them,  should  buy  the 
lands  of  both  companies,  as  their  trustee,  as  a  means  of  securing  their  debts 
against  the  Hamburgh  company,  including  E.'s  judgment  and  other  claims  he 
had  or  made  against  the  Hamburgh  company,  and  his  mortgage  on  the  Clin. 
ton  mine  farm.     There  was  also  an  understanding  with  P.,  who  held  the  bulk 
of  the  stock  of  both  companies,  and  was  carrying  on  or  conducting  Ihe  busi- 
ness of  the  Hamburgh  company,  that  the  said   trustee  should  convey  both 
properties  to  him,  on  his  paying  the  debts  of  the  said  agreeing  Hamburgh 
creditors,  and  the  sums  for  which  the  properties  should  be  struck  off  to  the 
said  trustee.     By  these  means  competition  was  prevented,  and  the  properties 
were  sold  at  a  sacrifice,  and  bought  by  L.,  one  of  the  agreeing  Hamburgh 
creditors  ;  the  other  judgment  creditors  of  the  Hamburgh  company  not  be- 
ing present  at  the  sale.     The  sheriff's  dead  to  L.  was  absolute. 

3.  On  a  bill  filed  by  the  Hamburgh  company  and  P.  and  his  assignees  un- 
der the  insolvent  law  and  a  subsequent  assignee  of  all  his  estate,  it  was  held 
that  the  sales  of  both  properties  were  unlawful ;  and  that  L.  was  a  trustee  of 
the  Hamburgh  property  for  the  Hamburgh  company  and  its  creditors.     But 
that  as  to  the  Clinton  property  no  decree  could  be  made,  the  Clinton  company 
not  being  parties  to  the  suit. 

Prior  to  December  7th,  1838,  the  sheriff  of  Sussex  county 
had  in  his  hands  several  executions,  issued  on  judgments  at 
law,  against  "  The  Hamburgh  Manufacturing  Company,"  a 
company  incorporated  by  the  legislature  of  this  state,  on  the 
10th  of  March,  1836,  by  virtue  of  which  he  had  levied  on  all 
the  real  estate  of  the  said  company,  and  advertised  the  same 
for  sale.  Of  these  executions,  the  first  in  priority  was  in  favor 
of  Joseph  E.  Edsall. 

VOL.  i.  Q 


250  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

The  same  sheriff  had  in  his  hands,  at  the  same  time,  am 
execution  issued  out  of  the  Court  of  Chancery,  on  a  decree  in  a 
foreclosure  suit,  for  the  sale  of  the  mine  farm  of  "  The  Clinton 
Manufacturing  Company,"  another  company  incorporated  by 
the  legislature  of  this  state,  to  raise  about  $2500,  the  mortgage 
on  which  the  said  decree  was  made  being  the  first  lien  on  the 
said  mine  farm  ;  and  also  an  execution  issued  out  of  the  Com- 
mon Pleas  of  Sussex  county,  against  the  said  Clinton  company, 
in  favor  of  Robert  Lewis  and  Joseph  M.  Brown,  for  $K)08.27. 
Joseph  E.  Edsall  held  a  subsequent  mortgage  on  this  mine 
farm,  for  about  $4000.  The  sale  of  this  farm  had  also  been 
advertised,  under  these  two  executions,  and  stood  adjourned  to 
December  7th,  1838. 

On  that  day,  Joseph  E.  Edsall,  the  first  judgment  creditor 
of  the  Hamburgh  company,  and  a  number  of  other  creditors 
of  the  said  Hamburgh  company  having  no  judgments  against 
sr,id  company,  including  Elias  L'Hommedieti,  entered  into  an 
agreement  in  writing,  among  themselves,  reciting  that  the  real 
estate  of  the  Hamburgh  company  was  advertised  to  be  sold  at 
sheriff's  sale,  and  that  they  were  in  danger  of  losing  their 
claims,  or  some  part  thereof,  if  the  said  property  sold  for  less 
than  $17,000  ;  and  that,  for  the  purpose  of  endeavoring  to  se- 
cure themselves,  they  deemed  it  advisable  to  purchase  the  said 
real  estate,  and  also  certain  real  estate  of  the  Clinton  Manufac- 
turing Company  in  the  county  of  Sussex,  whereon  is  an  ore 
bed,  advertised  by  the  said  sheriff;'  and  covenanting  and  agree- 
ing with  each  other  to  unite  in  the  purchase  of  the  said  real 
estates;  and  for  that  purpose  constituting  Elias  L'Hommedieu. 
their  agent  and  trustee,  in  his  own  name  and  for  his  own  and 
their  use,  to  purchase  the  said  properties,  at  any  sum  which, 
together  with  the  encumbrances,  should  not  exceed  $32,000  ; 
and  authorizing  and  instructing  L'Hommedieu  to  purchase  and 
procure  the  assignment  of  certain  encumbrances  upon  the  said 
property,  to  wit,  two  mortgages  given  by  Winslow  to  said  Ed- 
Ball,  about  June  1st,  1836,  on  the  said  Hamburgh  company's 
property,  or  part  thereof,  and  a  mortgage  given  by  Winslow  to 
Joseph  Sharp,  on  another  part  of  said  Hamburgh  property,  and 
of  such  mortgages  and  vouchers  as  might  be  necessary  the  bet- 
ter to  secure  the  title  to  said  property  ;  and  also  to  purchase  and 


DECEMBER  TERM,  1845.  251 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

procure  from  Joseph  E.  Edsall  a  mortgage  executed  by  "  The 
Clinton  Manfacturing  Company"  to  him,  on  the  said  Clinton 
ore  mine,  dated  January  10th,  1838,  for  about  $4000,  and 
authorizing  and  directing  their  said  trustee  to  raise,  by  bond 
and  mortgage  on  the  said  property,  sufficient  money  to  pay  the 
purchase  money  thereof  and  the  amount  of  the  encumbrances 
above  specified,  and  also  $2000  for  the  purpose  thereinafter  men- 
tioned, and  also  such  further  sum  as  might  be  necessary  to  pay 
the  claims  of  such  of  them,  the  said  creditors,  as  might  desire  the 
same  in  writing,  and  to  purchase  the  necessary  teams,  wagons, 
and  implements,  and  authorizing  and  directing  the  said  trus- 
tee, in  the  event  of  his  becoming  the  purchaser,  to  lease  the 
said  premises  to  some  suitable,  competent  person,  to  conduct  the 
furnace  and  works  upon  the  said  premises,  for  a  term  not  exceed- 
ing three  years,  at  a  rent  not  less  than  ten  per  cent,  on  the 
whole  cost  of  the  property ;  and  authorizing  their  said  trustee 
to  agree  with  the  lessee,  if  he  desires  it,  to  sell  to  him  the  said 
premises,  upon  his  securing  to  the  said  trustee  the  payment  of 
the  whole  cost  of  the  premises,  including  their  respective  claims, 
with  interest,  one-third  part  thereof,  with  interest  on  the  whole, 
to  be  paid  within  one  year,  and  the  residue  at  such  times  as 
might  thereafter  be  agreed  upon;  and,  on  compliance  on  the 
part  of  the  lessee,  with  the  contract  or  agreement  for  sale,  the 
said  trustee  to  make  a  deed  of  release  to  him  in  fee  ;  and  fur- 
ther agreeing,  that  if  the  said  trustee  should  succeed  in  raising 
money  for  the  purpose,  he  should  appropriate  it  as  follows : 
First,  to  the  payment  of  the  purchase  money  and  expenses  in 
procuring  the  title;  second,  to  the  procuring  of  the  before-men- 
tioned encumbrances;  third,  to  retain  $2000  for  the  purpose  of 
putting  the  furnace  (on  the  Hamburgh  property)  in  blast;  and, 
lastly,  to  the  payment  of  the  claims  of  such  of  them,  respect- 
ively, as  may  have  requested  the  raising  of  money  for  them  in 
manner  aforesaid;  and  if  there  be  any  deficiency  in  the  money 
raised,  then  in  proportion  to  the  respective  claims  of  the  said 
creditors  last  mentioned;  and  further  agreeing,  that  upon  the 
payment  to  them,  respectively,  of  their  claims,  or  any  part 
thereof,  raised  upon  the  said  premises,  they  would  severally  exe- 
cute and  deliver  to  the  loauer  of  the  said  money,  a  bond,  with 
satisfactory  security,  conditioned  that  the  said  property,  on  a 


252  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  EdsalJ. 

lawful  sale  thereof,  should  yield  the  amount  that  might  be  due 
thereon,  with  interest  and  costs ;  and  that  in  the  event  of  any 
deficiency,  they  would  respectively  refund  so  much  money  as 
might  be  necessary  to  make  up  such  deficiency,  in  proportion 
to  the  amount  paid  them  respectively ;  and  further  agreeing 
that,  for  the  purpose  of  ascertaining  the  amount  due  them, 
respectively,  they  would  forthwith  settle  and  arrange  the  same 
with  the  Hamburgh  Manufacturing  Company,  and  procure 
•their  certificates  of  the  amount  due;  and  that  in  case  of  any 
dispute  in  such  settlement  with  said  company,  the  same  should 
be  referred  to  three  indifferent  persons,  mutually  chosen  by  the 
said  differing  creditors  and  the  said  company;  and  further  pro- 
viding, that  in  case  the  said  company,  or  any  of  the  said  credit- 
tors,  neglect  or  omit  to  settle  the  said  claims,  or  choose  three 
indifferent  persons,  as  aforesaid,  then  the  said  claims  should  be 
determined  by  three  disinterested  persona,  to  be  chosen  by  a 
majority  of  the  said  creditors,  the  report  of  any  two  of  the  per- 
sons so  chosen  to  be  conclusive;  and  further  providing  that 
nothing  therein  contained  should  prevent  Joseph  E.  Edsall,  one 
of  the  said  creditors,  from  proceeding  to  the  recovery  of  his 
encumbrances  upon  the  said  premises,  in  case  the  same  should 
not  be  procured  and  purchased  of  him  by  the  said  trustee,  iu 
manner  aforesaid. 

This  agreement  was  signed  by  Elias  L'Horamedieu,  for  him- 
self, as  creditor  and  as  trustee,  and  by  Joseph  E.  Edsall  and 
some  twenty  other  creditors  of  the  Hamburgh  company,  by 
themselves,  their  attorneys,  or  assignees,  no  one  of  them,  except 
Edsall,  having  a  judgment  against  the  said  Hamburgh  com- 
pany. 

On  the  said  7th  of  December,  1838,  the  said  mine  farm  of 
"The  Clinton  Manufacturing  Company"  was  sold  by  the  sheriff, 
and  struck  off  to  the  said  Elias  L'Hommedieu,  for  $4041. 

On  the  14th  of  the  same  month,  the  said  sheriff  sold  all  the 
real  estate  of  "The  Hamburgh  Manufacturing  company,"  in 
seven  different  portions.  They  were  all  struck  off  to  L'Homme- 
dieu, at  bids  amounting,  together,  to  $285.  Different  portions 
of  the  Hamburgh  company's  property  were  subject  to  mort- 
gages, amounting,  together,  to  about  $ . 

The  deeds  to  L'Hommedieu,  for  both  properties,  were  abso- 


DECEMBER  TERM,  1845.  253 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

lute.  L'Homraedieu,  on  the  31st  of  December,  1838,  executed 
a  lease  of  all  the  Hamburgh  company's  property,  and  of  the 
said  Clinton  mine  farm,  to  Edward  W.  Pratt,  who  owned  the 
bulk  of  the  stock  of  both  said  companies,  and  who,  at  the  time 
of  the  making  of  the  agreement  by  the  said  creditors  among 
themselves,  and  at  the  time  of  the  said  sales,  was  carrying  on 
or  conducting  the  business  of  the  said  Hamburgh  company. 
The  terms  of  the  lease  were  conformable  to  those  of  the  lease 
provided  for  by  the  said  agreement  signed  by  the  said  creditors, 
except  that  $1500  instead  of  $2000  was  the  sum  inserted  there- 
in to  be  furnished  by  L'Hommedieu  to  Pratt,  for  the  purpose  of 
putting  the  furnace  in  blast. 

On  the  next  day,  L'Homraedieu  and  Pratt  entered  into  a 
written  agreement,  under  their  respective  hands  and  seals,  by 
which  L'Hommedieu,  in  consideration  of  $30,000,  to  be  paid 
to  him  by  Pratt,  covenanted  to  convey  to  Pratt  in  fee,  by  deed 
of  release,  with  the  usual  covenants  against  his  own  acts,  all  the 
lands  so  struck  off  to  him  at  the  eaid  sheriff's  sales,  including 
the  said  mine  farm  of  the  Clinton  company  ;  and  Pratt  cove- 
nanted to  pay  the  said  sum  as  follows:  one-third  thereof,  with 
interest  on  the  whole,  on  the  first  of  December,  then  next,  and 
the  residue  in  two  equal  yearly  payments  thereafter,  with  inter- 
est, to  be  secured  by  bond  and  mortgage  on  the  premises ;  the 
deed  to  be  delivered  on  or  before  the  said  first  day  of  December 
then  next,  on  Pratt's  paying  and  securing  the  said  purchase 
money  in  manner  aforesaid. 

This  agreement  also  provided  that  the  mortgage  held  by 
Joseph  Sharp,  on  part  of  the  Hamburgh  company's  property, 
for  $2084.36,  and  two  mortgages  held  by  Joseph  E.  Edsall,  on 
parts  of  the  Hamburgh  company's  property,  amounting  together 
to  $5617.39,  were  to  be  paid  out  of  the  purchase  money,  or 
that  if  Pratt  should  pay  them,  the  amount  thereof  should  be 
deducted  from  the  said  purchase  money. 

Pratt  was  discharged  as  an  insolvent  debtor  on  the  22d  of 
August,  1839,  and  thereupon  executed  an  assignment  of  that 
date,  of  all  his  property  to  Elias  Freeman  and  David  Jones. 

On  the  17th  of  July,  1841,  Pratt  executed  to  Joseph  B. 
Rones  an  assignment  of  all  his  estate,  of  every  description,  in 


254  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

trust  for  his  creditors,  including  Nones,  who  was  to  be  first  paid, 
and  as  to  any  residue  that  might  remain  after  paying  his  debts, 
in  trust  for  Pratt. 

On  the  28th  of  January,  1842,  a  bill  was  exhibited  by  "  The 
Hamburgh  Manufacturing  Company,"  Edward  W.  Pratt,  Elias 
Freeman  and  David  Jones,  and  Joseph  B.  Nones,  complainants, 
stating  the  foregoing  facts ;  and  stating  further,  that  Pratt  had 
been  endeavoring  to  effect  a  loan  to  pay  off  the  said  judgments 
against  the  Hamburgh  company  and  the  other  debts  of  the  said 
company,  and  that  to  give  him.  an  opportunity  to  do  so,  the 
sale  under  the  said  executions  had  been  adjourned  from  time  to 
time,  and  stood  adjourned  to  December  5th,  1838.  That  prog- 
ress had  been  made  in  the  negotiation  for  a  loan,  and  he  had 
assurances  that  the  money  would  be  raised  in  three  or  four 
weeks.  That  under  these  circumstances,  fearing  that  a  sale 
might  be  forced,  Pratt  applied  to  some  of  his  friends  in  New 
York,  who  determined  to  send  a  person  with  him  to  attend  the 
sale,  with  authority  to  buy  the  property,  if  it  became  necessary. 
That  accordingly,  on  the  said  5th  of  December,  1838,  Pratt 
went  to  Hamburgh,  and  that  Aaron  B.  Nones  accompanied 
him,  with  authority  and  with  the  means  to  purchase  the  prop- 
erty, if  no  agreement  could  be  made  between  Pratt  and  the  cred- 
itors of  said  company.  That  on  the  morning  of  the  said  5th 
of  December,  1838,  and  just  previous  to  the  hour  of  sale,  Elias 
L'Hommedieu  and  Joseph  E.  Edsall,  on  the  part  and  in  behalf 
of  the  creditors  of  the  Hamburgh  company,  most  of  whom 
were  the'n  present  to  attend  the  said  sale,  proposed  to  Pratt  that 
some  arrangement  should  be  made  that  would  be  mutually  bene- 
ficial to  all  parties  concerned,  and  that  to  effect  such  arrange- 
ment they  would  undertake  to  raise  money  enough,  by  mort- 
gage upon  the  property,  to  appropriate  $2000  for  the  purpose  of 
carrying  on  the  business  of  the  company,  and  to  pay  off  all  the 
creditors  ;  that  they  had  had  an  interview  with  David  Hyerson, 
Esq.,  and  that  he  had  offered  to  procure  a  loan  of  $30,000,  or 
of  whatever  sum,  not  exceeding  that  amount,  might  be  re- 
quired for  the  purposes  aforesaid  ;  but  that  the  said  loan  could 
only  be  obtained  on  condition  that  the  property  should  be  sold, 
and  some  person  become  the  purchaser  of  the  said  ore  bed,  (the 
Clinton  company's  mine  iarin,)  and  the  property  of  the  said 


DECEMBER  TERM,  1845.  255 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

Hamburgh  company  ;  for  that  under  the  sale  the  title  could  be 
better  perfected,  and  rendered  free  from  all  question,  doubt  or 
encumbrance ;  and  that  as  soon  as  the  said  loan  was  effected, 
the  property  should  be  re-conveyed  to  the  said  Hamburgh  Man- 
ufacturing Company,  or  to  Pratt.  That  in  view  of  this  propo- 
sition, and  to  give  time  for  reflection,  the  sale  was  adjourned, 
by  consent  of  all  parties,  to  the  next  "day  ;  that  on  the  next 
morning  a  meeting  of  the  said  creditors  and  Pratt  took  place, 
Ryerson  being  present,  and  Joseph  E.  Edsall,  in  the  presence 
of  all  parties,  then  stated  again  the  terms  of  the  proposed  ar- 
rangement ;  and  that  Ryerson  then  stated  that  he  could  procure 
the  said  loan,  and  that  as  soon  as  the  property  was  sold,  the 
money  should  be  advanced  to  the  purchaser,  to  be  secured  by 
mortgage  on  the  property,  on  condition  that  the  creditors  then 
present  would  execute  an  agreement  that,  in  proportion  to  their 
respective  claims  that  should  be  satisfied  out  of  moneys  raised  on 
the  mortgage,  they  would  be  responsible  to  the  mortgagor  for 
any  loss  he  might  sustain  on  account  of  said  loan,  to  which 
conditions  the  said  creditors  assented.  That  Pratt  then  accepted 
the  said  proposition,  and  it  was  agreed  that  the  property  should 
be  sold  under  the  said  arrangement,  and  that,  immediately  after 
the  sale,  in  order  to  secure  the  possession  to  Pratt,  and  a  re-con- 
veyance of  the  property  as  soon  as  the  loan  should  be  effected, 
L'Hommedieu  should  execute  a  proper  instrument  for  the  re- 
conveyance of  the  property  to  Pratt,  and  also  a  lease  for  the 
same  ;  and  by  consent  the  sale  was  then  adjourned,  to  take  place 
at  Newton,  on  the  7th  December,  1838. 

The  bill  then  states  that,  on  that  day,  and  for  the  purpose  of 
carrying  out  the  arrangement  before  stated,  the  said  creditors  of 
the  Hamburgh  company  entered  into  articles  of  agreement 
among  themselves  (being  the  articles  before  stated.)  The  bill 
then  states  the  sales  by  the  sheriff,  as  before  stated.  That  the 
property  of  the  Hamburgh  company,  and  the  ore  bed  of  the 
Clinton  company,  so  sold,  were  worth,  at  a  low  cash  valuation, 
$100,000.  That  in  November,  1838,  Joseph  E.  Edsall  and 
L'Hommedieu  had  each  given  a  written  appraisement  of  the 
said  Clinton  ore  bed,  estimating  its  value  at  $50,000.  That  at 
the  time  of  the  sale  there  were  persons  present  who  were  ready 
to  bid  a  large  amount,  and  particularly  for  the  ore  bed  ;  but 


256  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

they  were  informed  by  Joseph  E.  Edsall  and  L'Hornmedieu  and 
others  interested,  that  the  sale  was  made  under  an  arrangement 
between  the  said  company  and  the  creditors,  and  in  conse- 
quence thereof  they  were  induced  not  to  bid  on  the  property. 
That  the  aggregate  amount  due  to  the  said  creditors  of  the 
Hamburgh  company  who  signed  the  said  agreement,  was  about 
$17,000  ;  that  of  that  sum  L'Hommedieu  was  a  creditor  of  said 
Hamburgh  company  for  about  $f40.  That  Edsall  held  two 
mortgages  on  a  part  of  the  Hamburgh  property,  and  a  mortgage 
on  the  Clinton  company's  ore  bed,  and  pretended  to  have  a 
claim  against  the  complainants,  the  Hamburgh  company,  for 
two  or  three  thousand  dollars,  for  expenses  and  services  in  pro- 
curing the  charter  of  the  said  Hamburgh  company,  &c.,  but 
the  items  of  said  account  he  would  never  render  to  the  said 
company,  or  to  Pratt,  and  always  insisted  that  the  amount  of 
his  said  claim  should  be  allowed,  without  the  production  by 
him  of  any  bill  of  particulars  for  the  same,  but  which  the  com- 
plainants, the  Hamburgh  Manufacturing  Company,  and  Pratt 
always  refused  to  do,  or  to  admit  the  justice  of  any  such  amount 
as  said  Edsall  claimed.  That  Edsall  was  a  large  dealer  with 
the  complainants,  the  Hamburgh  Manufacturing  Company,  and 
became  largely  indebted  to  them,  and  to  an  amount  nearly  if 
not  quite  sufficient  to  satisfy  his  mortgages,  and  any  other  just 
demand  he  had  against  the  company.  That  at  the  time  of  said 
sale,  the  complainants,  the  Hamburgh  Manufacturing  Com- 
pany, were  in  possession  of  the  said  property*  belonging  to 
them,  and  were  preparing  for  blast.  That  immediately  after 
the  sale,  Pratt,  being  desirous  to  secure  the  possession  of  the 
property  in  order  to  carry  on  the  business,  urged  upon  L'Hom- 
medieu  and  Edsall  the  immediate  execution  of  the  agreement 
to  re-convey,  and  also  of  the  said  lease ;  and  with  the  view  of 
ascertaining  the  amount  of  the  accounts  of  the  respective  credit- 
ors of  the  Hamburgh  company  who  had  signed  said  agreement, 
had  effected  a  settlement  of  their  respective  amounts  with  all  or 
most  of  them,  except  said  Joseph  E.  Edsall,  whose  claim  re- 
mains unascertained. 

The  bill  then  states  the  lease  from  L'Hommedieu  to  Pratt, 
and  the  agreement  between  L'Hommedieu  and  Pratt  for  the 
com  eyauce  of  the  property  to  Pratt,  as  before  stated.  That  the 


DECEMBER  TERM,  1845.  257 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

said  $30,000,  mentioned  in  the  said  agreement  to  convey,  was 
only  a  nominal  sura,  named  as  sufficient  to  cover  the  objects 
contemplated  by  the  said  arrangement,  to  wit,  to  put  Pratt  in 
funds,  to  the  amount  of  $2000,  to  carry  on  the  works  and  pay 
off  all  the  debts ;  and  as  the  amount  of  the  debts  had  not  been 
fully  ascertained,  it  was  thought  best  to  borrow  $30,000,  and 
use  enough  of  it  for  the  purposes  aforesaid. 

The  bill  states  that  the  said  writings  were  executed  with  the 
expectation,  on  the  part  of  Pratt,  that  they  would,  in  a  few  days, 
be  canceled,  as  they  were  all  based  upon  and  entered  into,  on 
his  part,  relying  upon  the  loan  to  be  made  by  the  said  Ryerson  ; 
and  that,  with  that  expectation  and  understanding,  the  said  cred- 
itors did,  by  their  said  agreement  signed  by  them,  agree  to  exe- 
cute to  the  lender  of  the  money  their  respective  bonds,  as  stated 
in  their  said  agreement. 

The  complainants  further  state  that  the  $1500  stipulated  in 
the  lease  to  be  advanced  by  L'Hommedieu  to  Pratt,  to  put  the 
furnace  into  blast,  was  inserted  instead  of  the  $2000  contem- 
plated in  the  agreement  of  the  said  creditors  for  that  purpose, 
with  the  consent  of  Pratt ;  but  that  neithe/  L'Hommedieu  nor 
any  of  the  said  creditors  advanced  anything  whatever  to  put 
the  said  furnace  into  blast.  That  Pratt  went  on  with  his  own 
means  to  do  so ;  and  while  going  on  with  the  said  work,  ap- 
plied from  time  to  time  to  L'Hommedieu,  Edsall  and  Ryerson, 
for  the  completion  of  the  said  arrangement,  and  the  loan  of 
money  to  effect  it ;  and  was  continually  promised  that  the 
money  should  soon  be  advanced,  and  everything  satisfactorily 
arranged,  according  to  the  understanding  of  the  parties,  until, 
at  length,  Ryerson  told  Pratt  that  the  money  would  not  be  ad- 
vanced. 

The  complainants  further  state  that  while  Pratt  was  proceed- 
ing, as  aforesaid,  to  put  the  furnace  into  blast,  and  after  ascer- 
taining that  the  arrangement  made  at  the  said  sale  would  not  be 
carried  into  effect,  he  made  arrangements  in  New  York  for 
money  sufficient  to  pay  off  the  said  creditors,  and  requested 
L'Hommedieu  to  go  with  him  to  New  York,  to  have  the  papers 
executed  ;  that  while  on  his  way  to  New  York,  in  company 
with  L'Hommedieu,  he  was  arrested  on  a  recognizance  of  bail, 
and  confined  at  Newark. 


258  CASES   IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

The  complainants  state  that  they  are  informed  and  believe 
that  while  Pratt  was  thus  in  confinement,  L'Hommedieu  and 
Edsall  called  a  meeting  of  the  creditors  who  had  signed  the  said 
agreement,  and  proposed  that  they  should  take  possession  of  the 
property,  and  themselves  carry  on  the  business  of  the  said  com- 
pany ;  that  all  the  creditors,  except  L'Hommedieu  and  Edsall, 
declined  doing  so,  and  remonstrated  against  any  such  proceed- 
ing under  such  circumstances  ;  but  that  L'Hommedieu  and  Ed- 
sall, notwithstanding,  determined  themselves  to  take  possession 
of  the  property.  That  on  or  about  June  10th,  1839,  they  went 
into  the  office  on  the  premises,  where  all  the  books  of  the  com- 
pany were  kept,  they,  or-  one  of  them,  breaking  through  tlje 
windows,- the  door  of  the  office  being  locked,  and  then  went  to 
the  tenants  who  occupied  the  dwelling-houses  on  the  property 
of  the  complainants,  "The  Hamburgh  Manufacturing  Company," 
about  ten  in  number,  and  turned  out  of  doors  the  families  and 
furniture  of  such  of  them  as  would  not  agree  to  become  tenants 
under  them  ;  and  that  in  this  way  the  said  L'Hommedieu  and 
Edsall  took  possession  of  the  premises. 

The  bill  further  stages  that  when  L'Hommedieu  and  Edsall 
took  possession  as  aforesaid,  there  was  a  large  quantity  of  char- 
coal and  of  wood  cut,  and  of  ore  raised,  besides  other  personal 
property  of  various  kinds,  on  the  said  premises,  consisting  of 
furniture  belonging  to  the  office,  also  mules,  oxen,  horses, 
wagons,  carts,  sleds,  coal,  implements  for  raising  ore,  cutting 
wood,  and  working  the  blast,  owned  by  the  complainants,  "  The 
Hamburgh  Manufacturing  Company,"  and  Pratt,  or  in  their 
possession,  under  lease  and  agreement  with  the  owners  thereof, 
all  of  which  the  said  L'Hommedieu  and  Edsall  took  possession 
of  and  converted  to  their  own  use;  and  that  ever  since  the  said 
10th  of  June,  1839,  they  have  been  in  possession  of  the  said 
property,  and  of  the  rents  and  profits  thereof,  and  have  cut  and 
sold  wood,  and  raised  and  sold  ore,  and  have  made  two  blasts 
on  said  premises,  and  are  now  in  a  third  blast ;  and  have,  as 
the  complainants  are  informed  and  believe,  cleared  out  of  the 
first  blast  upwards  of  $15,000,  and  out  of  the  second  more  than 
$10,000,  after  paying  all  the  expenses  thereof;  being  more  than 
sufficient  to  pay  all  the  debts  of  the  said  Hamburgh  company; 
and  that  the  said  L'Hommedieu  and  Edsall  have  rendered  no 


DECEMBER  TERM,  1845.  259 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

account,  but  have  refused  to  do  so;  and  that  the  claims  of  tho 
said  creditors  remain  unsatisfied,  except  a  few  which  L'Hom- 
medieu  and  Edsall  have  purchased,  at  one-half,  and  some  at 
one-quarter  of  the  amount  thereof. 

The  complainants  further  state  that  they  have  frequently, 
through  Pratt,  applied  to  L'Hommedieu  and  Edsall  to  account, 
&c.,  and  to  appropriate  the  proceeds,  rents  and  profits,  to  pay  oif 
the  said  creditors  of  "The  Hamburgh  Manufacturing  Com- 
pany/' according  to  the  agreement  under  which  L'Hommedieu 
purchased  and  took  the  sheriff's  deed  ;  and  the  balance,  if  any, 
to  pay  over  to  the  complainants,  some  or  one  of  them;  and  for 
L'Hommedieu  to  re-convey  the  premises  to  the  complainants, 
some  or  one  of  them  ;  the  complainants  offering,  and  now  offer- 
ing, if,  on  the  taking  of  such  account  there  should  not  be  found 
funds  sufficient  in  the  said  defendants'  hands  to  pay  off' the  said 
creditors,  to  advance  enough  to  make  up  the  deficiency. 

The  bill  prays  an  account  of  all  and  every  the  said  estate 
and  effects  of  the  complainants,  "The  Hamburgh  Manufactur- 
ing Company  "  and  Pratt,  taken  possession  of  by  L'Hommedieu 
and  Edsall,  and  of  the  rents,  issues  and  profits  of  the  said  real 
estate;  and  that  the  said  deed  to  L'Hommedieu  may  be  declared 
a  trust  deed,  and  the  rights  and  interests  of  the  complainants 
under  the  same  be  declared  and  secured ;  and  that  an  account 
may  be  taken  of  the  respective  debts  due  from  the  complainants, 
"  The  Hamburgh  Manufacturing  Company,"  to  the  said  credi- 
tors, respectively;  (they  are  all  made  defendants;)  and  that  the 
same  may  be  paid,  under  the  direction  of  this  court,  out  of  the 
said  rents,  issues  and  profits ;  and  if  it  shall  appear  that  the 
rents,  issues  and  profits,  and  other  receipts  of  the  said  Edsall 
and  L'Hommedieu,  exceed  the  said  debts,  they  may  be  directed 
to  pay  to  the  complainants  such  excess;  and  that  L'Hommedieu 
and  Edsall  may  surrender  and  convey  the  said  premises  to  the 
complainants,  or  such  person  as  they  shall  appoint,  free  from 
all  encumbrances  made  by  them,  and  deliver  up  to  the  com- 
plainants all  title  deeds,  &c. ;  and  that  the  complainants  may 
have  such  further  relief,  or  such  other  relief  in  the  premises,  as 
the  circumstances  of  the  case  may  require. 

L'Hommedieu  and  Edsall  put  in  their  joint  and  several  an- 
swer to  the  bill ;  the  substance  of  which,  so  far  as  n.xeesary  to 


260  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

the  consideration  of  the  case,  is  as  follows:  They  admit  that 
Pratt  made  various  efforts  to  prevent  a  sale  of  the  real  estate  of 
"The  Hamburgh  Manufacturing  Company,"  under  the  said  ex- 
ecutions against  them,  and  procured  adjournments  of  the  sale 
from  time  to  time  ;  and  that  he  may  have  made  efforts  to  nego- 
tiate a  loan  upon  the  said  property,  to  pay  off  the  judgments 
and  other  debts  against  the  said  company;  and  may  have  pro- 
cured searches  of  the  title,  and  certificates  of  competent  persons 
as  to  the  value  of  the  property  ;  but  what  success  he  met  with 
in  his  efforts,  or  what  assurances  he  may  have  received,  these 
defendants  say  they  are  ignorant. 

They  admit  that  on  the  5th  of  December,  1838,  the  day  the 
sale  of  the  Clinton  mine  tract  was  to  take  place,  Pratt  came  to 
Hamburgh  in  company  with  Aaron  B.  Nones  ;  but  say  they 
are  wholly  ignorant  whether  Nones  had  authority  or  means  to 
purchase  the  said  property  ;  and  that  if  the  facts  were  so,  they 
were  not  disclosed  by  Nones  or  Pratt,  either  to  these  defendants 
or  to  any  other  persons,  so  far  as  they  know  and  believe.  They 
admit  that  they  and  a  number  of  other  creditors  of  the  Ham- 
burgh company  were  present  to  protect  their  interests  ;  but 
deny  that  on  that,  or  any  other  occasion,  they  told  Pratt  that 
they  would  undertake  to  raise  money  enough  by  mortgage  upon 
the  property,  to  appropriate  $2000  for  the  purpose  of  carrying 
on  the  business  of  the  company,  and  to  pay  off  all  the  creditors, 
or  that  they  had  any  assurances  from  David  Eyerson  such  as 
the  complainants  have  represented  in  their  bill,  that  he  would 
or  could  procure  a  loan  of  $30,000,  or  whatever  sum,  not  ex- 
ceeding that  amount,  might  be  required  for  the  purposes  afore- 
said, but  that  said  loan  could  only  be  obtained  on  condition  that 
the  property  should  be  sold,  and  some  person  should  become  the 
purchaser  of  the  said  ore  bed  and  the  property  of  the  Hamburgh 
company,  or  that  as  soon  as  the  said  loan  could  be  effected, 
the  said  property  should  be  re-conveyed  to  the  Hamburgh  com- 
pany or  Pratt,  or  that  in  the  meantime  the  said  property  should 
continue  in  the  hands  of  Pratt,  or  that  at  any  other  subsequent 
meeting  of  the  said  creditors,  these  defendants,  or  any  other  of 
the  said  creditors,  to  their  knowledge,  ever  proposed  any  arrange- 
ment, or  that  any  arrangement  was  at  any  time  proposed,  to  the 
knowledge  or  belief  of  these  defendants,  by  v  hich  any  trust 


DECEMBER  TERM,  1845.  2GI 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

whatever  was  to  be  created  in  any  person,  in  favor  of  Pratt  or 
"  The  Hamburgh  Manufacturing  Company  ;"  or  that  the  sale 
of  the  Clinton  mine  tract  was  adjourned  on  the  said  5th  of 
December,  upon  any  such  arrangement  or  understanding  with 
Pratt,  or  that  on  the  next  morning  Ryerson  stated  in  the  pre- 
sence of  Pratt  and  these  defendants  and  other  creditors,  that  he 
could  "procure  the  said  loan  on  the  conditions  in  the  bill  men- 
tioned, or  on  any  other  conditions,  or  that  there  was  any  assent 
of  the  creditors  to  any  such  conditions,  or  any  agreement  that 
a  sale  should  be  made  under  any  such  arrangement  as  the  com- 
plainants have  alleged,  or  that  L'Hommedieu  should  purchase 
under  any  such  agreement  or  arrangement,  or  should  execute 
any  re-conveyance  or  lease  to  Pratt,  founded  on  any  such  agree- 
ment or  arrangement. 

They  say  that  the  sale  of  the  Clinton  mine  tract,  under  exe- 
cution in  the  hands  of  said  sheriff  against  the  Clinton  compa- 
ny, having  been  adjourned  from  time  to  time,  until  the  said  5th 
of  December,  and  the  whole  of  the  real  estate  of  the  Hamburgh 
company  being  also  advertised  under  executions  in  the  hands 
of  said  sheriff  against  the  Hamburgh  company,  and  these  de- 
fendants and  the  other  creditors  of  the  Hamburgh  company 
deeming  it  important  to  the  security  of  their  claims  against  the 
Hamburgh  company,  that  the  Clinton  mine  tract,  whence  the 
Hamburgh  company  derived  their  principal  supply  of  ore, 
should  be  purchased  in  for  the  benefit  of  the  Hamburgh  fur- 
nace, and  the  creditors  of  the  said  company  despairing  of 
Pratt's  being  able  to  raise  funds  or  make  any  arrangement  for 
the  payment  or  security  of  their  debts,  and  having  large  claims 
against  the  said  Hamburgh  company,  sometime  in  November, 
and  several  weeks  previous  to  the  time  appointed  for  the  sale  of 
the  said  mine  tract,  held  a  meeting  for  the  purpose  of  consult- 
ing together  as  to  the  best  means  of  securing  their  debts  ;  and 
that  it  was  then  agreed  among  the  said  creditors,  that  if  the  said 
mine  tract  and  the  real  estate  of  the  Hamburgh  company  should 
be  sold  on  the  said  executions,  they  would  appoint  one  uf  their 
number  to  purchase  the  same,  for  the  benefit  of  such  of  the 
crerlitors  as  should  become  parties  to  the  agreement,  in  case  no 
person  should,  at  such  sale,  offer  a  sufficient  sum  to  pay  the  en- 
cumbrances and  secure  the  creditors  ;  and  that  at  that  meeting, 


262  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

the  creditors  settled  upon  most  of  the  principles  of  the  articles  of 
agreement  afterwards  executed  on  the  7th  of  December,  and 
which  is  set  out  in  the  complainants'  bill.  They  say  that  nei- 
ther Pratt  nor  the  Hamburgh  company  were  known  in  the 
said  arrangement,  or  had  any  part  or  interest  in  it,  but  that  it 
was  an  arrangement  determined  npon  and  entered  into  by  these 
defendants  and  the  other  creditors  who  became  parties  to  it, 
solely  on  their  own  account  and  for  their  own  protection  and 
benefit,  and  induced  solely  by  the  belief  that  the  said  company 
and  Pratt  were  utterly  insolvent.  That  the  debts  and  encum- 
brances then  existing  against  the  Hamburgh  company,  accord- 
ing to  the  best  of  the  knowledge  and  belief  of  these  defendants, 
exceeded  $30,000;  and  that  the  debts  of  the  Clinton  company 
which  existed  at  the  time  as  liens  on  the  said  mine  tract  exceed- 
ed $10,000  ;  and  that,  as  the  principal  value' of  the  Hamburgh 
property  and  of  the  said  mine  tract,  depended  upon  its  being  all 
kept  together,  and  used  for  the  purpose  of  manufacturing  iron, 
it  became  a  matter  of  the  last  importance  to  the  creditors  to  pre- 
vent it  being  sold  in  separate  parcels,  or  for  other  purposes ;  as 
such  an  event  must  necessarily  have1  resulted  in  a  great  sacri- 
fice of  the  property,  and  consequently  in  a  great  and  almost  to- 
tal loss  to  the  creditors,  the  Hamburgh  company  and  Pratt  be- 
ing without  any  other  means  to  discharge  the  said  debts,  to  the 
knowledge  or  belief  of  these  defendants. 

They  say  that  at  some  one  or  more  of  the  meetings  of  the 
creditors  of  the  Hamburgh 'company,  held  previous  to  the  sale, 
David  Ryerson  was  present,  and  was  consulted  by  some  of  said 
creditors  as  to  the  possibility,  in  case  the  property  should  be  pur- 
chased for  the  benefit  of  the  creditors  by  one  of  their  number, 
of  raising,  by  loan  to  be  secured  on  the  same,  money  sufficient 
to  satisfy  their  claims,  provided  they  would  agree  to  indemnify 
the  lender  against  all  losses,  should  the  property,  on  a  sale 
thereafter  to  be  made,  not  bring  the  amount ;  that  Ryerson  of- 
fered to  make  an  effort  to  procure  a  loan  of  $30,000  for  that 
purpose,  and  expressed  the  hqpe  that  lie  should  be  able  to  effect 
such  a  loan,  and  did  make  efforts,  as  these  defendants  believe, 
to  do  so,  but  wholly  without  effect;  but  these  defendants  deny 
that  he  ever  gave  them,  or  the  creditors,  or  Pratt,  in  their  pre- 
sence, or  to  their  knowledge,  any  promise  that  he  would,  or 


DECEMBER  TERM,  1815.  263 

Hamburgh  Manufacturing  Co.  v.  Edaall. 

assuranqe  that  he  could  raise  the  said  sura,  or  any  other  sum, 
upon  the  property  and  security  aforesaid. 

They  admit  that  such  articles  of  agreement  by  and' between 
the  subscribers  thereto,  creditors  of  the  Hamburgh  Company,  as 
are  set  out  in  the  complainants'  bill,  were  made  and  executed 
between  them,  on  the  7th  of  December,  1838,  the  day  of  the 
date  thereof;  but  they  deny  that  said  agreement  was  made  or 
executed  under  any  agreement  or  arrangement  between  them 
and  Pratt,  or  for  the  purpose  of  carrying  out  any  arrangement 
r  agreement  between  them,  or  in  the  expectation  that  the  said 
sum  of  money  would  be  immediately  raised,  or  with  the  under- 
standing that  the  said  property  was  to  be  re-conveyed  to  Pratt, 
or  that  a  lease  was  to  be  executed  to  him  immediately  after  the  * 
sale,  but  that,  on  the  contrary,  the  meaning  and  intent  of  the 
said  agreement  is  fully  and  entirely  expressed  therein,  and  that 
it  expresses  all  that  was  understood  between  the  parties,  as  far 
as  the  knowledge  or  belief  of  these  defendants  extends. 

They  admit  that  L'Hommedieu  became  the  purchaser  of  the 
Clinton  mine  tract,  at  the  sheriff's  sale  thereof,  for  $4041,  sub- 
ject to  all  prior  encumbrances,  and  that,  on  the  14th  of  said 
December,  the  said  sheriff  sold  all  the  real  estate  of  the  Ham- 
burgh company,  and  that  L'Hommedieu  became  the  purchaser 
thereof,  for  $285,  subject  to  all  prior  encumbrances,  and  that 
deeds  were  delivered,  by  the  sheriff,  to  L'Hommedieu. 

L'Hommedieu  says  he  bought  the  Clinton  mine  tract  and 
the  Hamburgh  property  by  virtue  of  the  powers  and  instruc- 
tions, and  for  the  sole  purposes  set  forth  in  the  said  agreement  of 
December  7th,  and  for  no  other  purpose  whatever;  that  he  acted 
as  the  agent  or  trustee  of  the  creditors,  as  therein  particularly 
named,  and  for  none  others;  that  there  was  not  any  under- 
standing or  agreement  between  himself  and  Pratt,  or  between 
himself  and  any  other  person  or  persons,  that  he  was  to  hold 
the  property,  or  any  part  of  it,  in  trust  for  Pratt  or  the  Ham- 
burgh company,  or  for  their,  or  either  of  their  use  or  benefit,  or 
for  any  other  purposes  than  those  expressed  in  the  said  articles 
of  agreement. 

They  deny  that  the  Hamburgh  property  and  the  Clinton  ore 
bed  were  worth  $100,000,  or  that  there  were  any  person  or  per- 
sons present  at  the  sale  or  sales  aforesaid,  to  the  knowledge  or 


264  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

belief  of  these  defendants,  who  were  ready  to  bid  a  large 
amount,  either  for  the  ore  bed  or  for  the  Hamburgh  property, 
and  were  prevented  from  bidding  in  consequence  of  the  infor- 
mation of  the  arrangement  among  the  creditors;  but  they  say 
that,  at  the  time  of  the  said  sales,  many  of  the  creditors  doubted 
the  propriety  of  buying  in  the  property  for  the  amount  of  the 
encumbrances,  and  considered  its  utmost  value  below  $30,000 ; 
and  that  these  defendants  and  the  other  creditors  were  then, 
and  since  have  been  willing  to  sell  the  whole  property,  includ- 
ing the  mine,  for  that  sum.  That  since  the  said  pales,  they 
have  offered  the  whole  property  to  Pratt  for  $29,000,  though 
they  had  expended  $2000  on  it ;  and  that  they  would  be  glad 
now  to  sell  the  property  for  $30,000;  and  that  they  believe  that 
the  full  value  of  the  property,  subject  to  the  encumbrances  and 
debts  embraced  in  the  said  agreement,  was  given  for  it;  and  as 
to  the  ore  mine  tract,  they  say  it  was  bid  up  to  within  one  dol- 
lar of  what  it  was  struck  off  for,  by  Joseph  H.  Pettis,  secretary 
of  the  Hamburgh  company,  as  these  defendants  believe. 

They  admit  that  sometime  previous  to  the  sale  of  the  Clinton, 
mine  tract,  they  gave  some  such  certificates  as  to  its  value  as 
the  complainants  have  charged ;  that  Pratt  called  on  them,  on 
one  occasion,  when  he  was  making  efforts  to  borrow  money  on 
the  property,  and  represented  to  them  that  he  had  had  the  ore 
bed  examined  by  scientific  miners,  who  had  bored  the  ridge 
throughout,  and  found  the  bed  inexhaustible;  that  from  these 
representations,  not  having  much  personal  knowledge  of  the 
matter  themselves,  and  supposing  Pratt's  representations  of  the 
extent  of  the  ore  to  be  true,  and  knowing  that  ore  could  then 
be  raised  from  the  mine  at  fifty  cents  a  ton,  they  signed  the  said 
certificates ;  but  that  they  soon  after  ascertained  that  said  repre- 
sentations were  untrue — that  the  said  ore  was  far  from  being  so 
extensive,  and  that  the  same  is  now  so  far  exhausted,  that  for 
the  ore  they  have  recently  procured  from  that  mine,  they. have 
been  obliged  to  pay  at  least  three  dollars  a  ton. 

Edsall  says,  that  at  the  time  of  the  execution  of  the  said 
agreement,  he  held  two  mortgages  on  part  of  the  real  estate  of 
the  Hamburgh  company,  and  a  mortgage  on  the  said  Clinton 
ore  mine;  that  the  mortgages  on  the  Hamburgh  property,  with 
interest,  then  amounted  to  about  $6500,  and  that  he  had  a 


DECEMBER  TERM,  1845.  265 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

claim  against  the  Hamburgh  company  of  about  $3000,  but  he 
denies  that  the  said  claim  was  for  services  and  expenses  in  pro- 
curing the  charter  of  the  company,  or  that  he  ever  refused  to 
furni.sh  to  the  said  company,  or  to  Pratt,  the  particulars  of  said 
account,  but  says  that  the  said  claim  was  for  coal,  wood  and 
other  goods  and  personal  property  sold  and  delivered  by  him  to 
gaid  company,  and  for  work  and  labor  done  and  money  advanced 
to  and  for  the  use  of  said  company,  at  their  request ;  and  that 
the  same  was  admitted  by  Pratt,  in  an  agreement  of  November 
29th,  1837,  as  a  valid  and  existing  debt  due  from  said  company, 
and  set  down  as  such  by  Pratt's  consent,  among  the  debts  to  be 
secured  by  a  mortgage  to  Abner  Jones  ;  and  he  denies  that  he 
ever  was  indebted  to  the  said  company,  or  that  he  ever  bought 
any  ore  of  the  said  company,  or  that  they  had  or  have  any  just 
account  or  demand  against  him,  by  way  of  offset,  as  is  alleged 
in  the  bill. 

These  defendants  admit  that  they  have  purchased  up,  and 
taken  an  assignment  of,  debts  due  from  the  Hamburgh  com- 
pany, as  stated  in  the  bill ;  and  that  they  now  hold  a  large 
amount  of  claims  against  said  company,  secured  by  the  agree- 
ment of  the  creditors,  before  referred  to;  that,  including  the 
mortgages  held  by  the  defendant  Edsall,  and  the  Sharp  mort- 
gage assigned  to  Edsall,  the  whole  amount  of  the  claims  of 
these  defendants,  existing  at  the  time  of  the  said  agreement  and 
purchased  since,  together  with  the  purchase  money  paid  for  the 
Clinton  mine  tract,  is  $32,476.51,  as  near  as  they  can  at  pres- 
ent ascertain  ;  and  they  admit  that  there  are  yet  some  out- 
standing claims  embraced  in  the  provisions  of  the  said  agree- 
ment, the  amount  of  which  they  do  not  precisely  know,  some 
small  amount  of  which  may  have  been  purchased  up  by  Pratt 
and  Nones. 

They  admit  that,  at  the  time  of  the  sale,  the  Hamburgh  com- 
pany were  in  possession  of  the  property  belonging  to  that  com- 
pany, but  deny  that  they  were  then  at  Work  preparing  for  a 
blast,  and  say  they  had  suspended  their  operations,  and  the 
whole  property  was  lying  idle,  and  nearly  unoccupied,  and  had 
been  so  for  months. 

The  defendant  L'Hommedieu  denies  that  he  was  under  any 
obligation,  by  virtue  of  anything  contained  in  the  agreement 

VOL.  i.  B 


266  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

of  the  creditors  of  the  Hamburgh  company,  under  which  he 
was  appointed  their  trustee,  or  by  virtue  of  any  arrangement  or 
understanding  had  with  Pratt  previous  thereto,  or  at  the  time 
of  the  execution  of  the  said  agreement,  to  make  any  lease  or 
enter  into  any  articles  for  the  sale  of  the  said  property  to  Pratt, 
or  that  Pratt  called  upon  him  repeatedly  to  do  so,  as  is  stated 
in  the  bill  ;  but  he  says  that,  upon  a  conference  with  the  credit- 
ors, and  at  the  solicitation  of  Pratt,  and  under  the  influence 
of  the  representations  made  by  him  that  he  could  yet  raise 
money  to  carry  on  the  works  and  pay  off  the  creditors  of  the 
company,  a  majority  of  the  said  creditors  advised  this  defendant 
to  execute  a  lease  of  the  property  to  Pratt,  and  to  enter  into  a 
contract  for  the  sale  of  the  premises  to  him,  for  $30,000,  and 
that  a  lease  and  contract  of  sale  were  accordingly  made  and  de- 
livered to  Pratt,  as  the  same  are  set  out  at  large  in  the  com- 
plainants' bill ;  and  he  denies  that  the  said  sum  was  merely 
nominal,  and  named  as  being  more  than  sufficient  to  cover  the 
objects  of  starting  the  furnace  and  paying  the  debts,  but  that 
it  was  the  sum  for  which  the  creditors  and  he  were  willing  to 
sell  the  property  to  him,  though  below  the  actual  amount  of  the 
claims  by  about  $2000. 

L'Hommedieu  denies  that  the  lease  and  agreement  were  ex- 
ecuted with  the  expectation  of  their  being  canceled,  or  that 
they  were  based  on  any  expectation  of  a  loan  to  be  effected  by 
or  through  Ryerson,  but  says  that,  at  the  time  they  were  exe- 
cuted, it  was  distinctly  known  by  the  parties  that  a  loan  could 
not  be  obtained  through  Ryerson  ;  but  Pratt  insisted  that  if  he 
could  get  such  lease  and  agreement,  it  would  enable  him  to  go 
on  with  the  business,  and  finally  complete  the  purchase;  and 
the  creditors,  not  being  willing  to  attempt  to  carry  on  the  works 
on  their  own  account,  preferred  any  plan  which  appeared  to 
promise  success  and  put  the  works  in  operation,  rather  than 
abandon  them  to  ruin,  and  that  the  covenants  binding  Pratt  to 
go  on  with  diligence,  under  penalty  of  forfeiture,  were  inserted 
to  secure  that  end. 

These  defendants  say  that,  after  the  making  of  said  lease  and 
agreement,  Pratt  left  Hamburgh,  and  furnished  no  means,  nor 
did  anything  towards  putting  the  furnace  in  operation,  but 
suffered  the  property  to  be  idle,  and  everything  to  go  to  ruiu. 


DECEMBER  TERM,  1845.  267 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

That  the  furnace  dam  was  swept  away,  and  no  efficient  efforts 
or  preparations  made  to  repair  it.  They  deny  that  Pratt  ap- 
plied to  them  or  either  of  them,  for  means  to  carry  on  the 
works;  nor  was  he  kept  in  suspense  by  these  defendants;  nor 
did  he  get  up  any  ore,  or  put  the  furnace  in  blast,  or  procure 
wood  or  ore  during  any  time  after  he  received  said  lease. 

L'Hommedieu  admits  that  in  April,  after  the  lease  and  agree- 
ment, Pratt  being  in  Hamburgh,  and  this  defendant  being  de- 
sirous of  satisfying  himself  whether  there  was  any  probability 
that  Pratt  would  be  able  to  go  on,  or  comply  with  the  agree- 
ment, he  started  with  Pratt  for  New  York,  to  see  the  persons 
who  Pratt  alleged  proposed  or  were  willing  to  advance  him 
money ;  and  that  on  the  way  Pratt  was  arrested,  and  was  de- 
tained at  Jersey  City ;  and  this  defendant  went  over  to  New 
York  with  a  letter  from  Pratt  to  his  friends.  That  this  defend- 
ant delivered  the  letter  to  the  the  persons  to  whom  it  was  ad- 
dressed, one  of  whom,  he  thinks,  was  Abner  Jones,  but  they 
refused  to  do  anything  for  Pratt,  and  he  was  taken  to  Newark 
jail,  and  in  August  following,  took  the  benefit  of  the  insolvent 
laws,  making  an  assignment  to  Freeman  and  Jones,  in  which 
are  embraced  about  600  shares  of  Hamburgh  stock,  and  the  said 
lease,  and  from  600  to  1200  shares  of  the  Clinton  stock. 

These  defendants  say  that  from  the  time  of  the  lease  to  that 
of  the  arrest,  the  property  was  unoccupied,  the  dam,  in  the 
meantime,  mostly  carried  away,  &c.,  and  the  whole  property 
rapidly  going  to  decay ;  and  the  creditors  and  these  defendants 
apprehended  that  the  whole  works  would  be  ruined,  and  at  the 
instance  of  some  of  them,  D.  Haines  and  R.  Hamilton  went  to 
Newark  to  see  Pratt,  and  learn  his  views,  and  what  he  ex- 
pected to  do.  That  Pratt  told  them  he  had  given  up  all  idea 
of  being  able  to  do  anything  with  the  property,  that  he  reliu- 
quished  all  claim  to  the  same,  that  the  creditors  might  take  pos- 
session, and  might  as  well  have  done  so  before,  as  he  had  aban- 
doned all  idea  of  doing  anything  in  the  matter  for  some  time 
previous. 

These  defendants  admit  they  called  a  meeting  of  the  credi- 
tors, after  Pratt  had  been  confined  in  jail,  and  that  most  of 
them  met,  and  that  it  was  proposed  they  should  put  the  works 
ia  repair  and  go  on ;  but  the  majority  objected  to  engage  in  it, 


268  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

and  many  of  them  declared  they  would  sooner  lose  their  claim 
than  encounter  the  risk  ;  and  it  was  then  proposed  that  a  few 
of  the  creditors  should  join  and  carry  on  the  business  ;  and  it 
was  finally  agreed  that  some  such  arrangement  should  be  ef- 
fected, if  it  could  be  brought  about. 

And  these  defendants  deny  that  the  creditors,  except  said  de- 
fendants, opposed  the  possession  of  the  property  being  taken 
out  of  regard  to  any  supposed  rights  of  Pratt,  who  had  forfeited 
rll  right  under  his  lease,  by  neglecting  to  proceed  to  put  the 
property  in  order  and  carry  on  the  works,  and  by  abandoning 
the  same  to  ruin,  in  express  violation  of  the  covenants  of  the 
iease. 

They  say  that  all  prospects  of  Pratt's  doing  anything  being 
ended,  the  said  Edsall  having  a  mortgage  on  the  furnace  tract, 
and  being  a  holder,  to  a  very  large  amount,  of  the  claims  under 
which  the  property  had  been  sold,  entered  into  and  took  peace- 
able possession  of  the  property,  about  the  time  in  the  bill  stated, 
in  his  own  right  as  mortgagee  ;  and  the  defendant  L'Homme- 
dieu,  afterwards,  as  purchaser  at  said  sheriff's  sale  and  trustee 
for  the  creditors,  aud  as  holder  of  the  Jones  mortgage,  entered, 
peaceably,  on  the  premises  not  included  in  the  mortgage  of  Ed- 
sall, and  also  of  the  Clinton-  mine;  and  that  the  defendants  af- 
terwards agreed  to  unite  in  putting  the  property  in  repair,  and 
the  furnace  in  blast,  and  in  carrying  on  the  business.  They 
deny  that  the  creditors  objected  to  their  taking  possession,  but 
insist  that,  as  far  as  they  know,  they  acted  in  conformity  with 
the  wishes  and  desires  of  said  creditors.  They  deny  turning 
out  tenants  of  Pratt,  or  taking  such  forcible  possession  as  the 
bill  charges,  but  say  that  the  premises  were  abandoned  by 
Pratt ;  that  he  had  forfeited  his  right  under  the  lease,  and  had 
expressly  declared  to  the  accredited  agents  of  the  creditors,  that 
he  relinquished  all  pretentious  of  claim  to  the  property. 

They  deny  that,  when  they  took  possession,  there  was  a  large 
quantity  of  charcoal,  wood,  ore,  or  personal  property  of  various 
descriptions,  or  mules,  &c.,  belonging  to  complainants,  or  any 
of  them,  on  the  same,  but  say  that  all  the  personal  property 
which  had  been  owned  by  the  Hamburgh  company  had  been 
before  sold  by  the  sheriff  and  constables,  and  that  most  of  the 
teams,  &c.,  and  other  property  had  been  bought  by  Edsall ; 


DECEMBER  TERM,  1845.  269 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

and  since  being  in  possession,  they  have  obtained  their  ore  for 
the  blasts  from  the  mine,  and  have  cut  some  wood  on  the  pre- 
mises ;  but  most  of  the  wood  and  coal  they  have  got  from  lands 
of  Edsall,  or  other  of  the  furnace  property,  or  of  other  persons. 
They  admit  they  have  now  on  hand  some  pig-iron,  coal,  ore, 
wood,  mules,  &c. ;  but  deny  that  any  of  them  belong  to  the 
company,  or  Pratt,  or  were  procured  by  their  means,  but  say 
they  have,  ever  since  being  in  possession,  carried  on  the  busi- 
ness wholly  with  their  own  means  ;  and  that,  at  their  own  ex- 
pense, they  rebuilt  the  dam,  at  an  expense  of  $2500,  put  up  a 
coal-house,  rebuilt  part  of  the  flume,  and  made  other  extensive 
erections  and  repairs,  and  bought  all  the  necessary  personal  pro- 
perty to  enable  them  to  carry  on  the  works,  and  keep  them  in 
operation. 

They  deny  that  they  have  cleared  from  the  first  blast  upwards 
of  $15,000,  and  out  of  the  second  more  than  $10,000;  but  say 
that  the  proceeds  of  the  business  have  not,  as  yet,  met  the  out- 
lays and  expenses  of  carrying  it  on,  and  paid  a  fair  compensa- 
tion to  the  defendants  for  their  trouble  and  investments. 

They  deny  that  they  ever  have  refused  to  account  with  the 
creditors  of  the  Hamburgh  company,  or  that  they  have  ever 
been  called  on  to  account  by  them;  but  say  they  are  ready,  and 
have  always  been  ready  to  account  with  the  said  creditors,  un- 
der the  said  agreement  of  December  7th,  1838. 

They  deny  that  Pratt  has  frequently  applied  to  them  to  ac- 
count, as  the  complainants  state  in  their  bill,  but  admit  that  in 
July  last,  (the  answer  was  filed  in  March,  1842,)  Pratt  called 
on  Edsall  and  wanted  him  to  exhibit  an  account  of  their  busi- 
ness, as  trustee  and  agent  of  said  Pratt  or  the  Hamburgh  com- 
pany, and  that  Edsall  told  Pratt  that  neither  he  nor  the  Ham- 
burgh company  had  anything  to  do  with  the  property  or  busi- 
ness, or  had  any  right  to  any  account  whatever ;  and  that 
Pratt,  about  the  same  time,  called  on  L'Hommedieu,  and  made 
eome  like  demand,  but  he,  L'Hommedieu,  being  sick,  referred 
him  to  Edsall. 

They  deny  that  they  took  possession  fraudulently,  or  in  vio- 
lation of  any  agreement  or  lease,  or  against  the  express  wish 
of  the  creditors;  and  deny  that  the  complainants  have  any  in- 
terest in  or  claim  to  said  property,  or  any  part  thereof. 


270  CASES  IN  CHANCERY. 

Hamtyurgh  Manufacturing  Co.  v.  Edsall. 

The  defendant  Daniel  Haines  also  put  in  his  answer.  He 
admits  that  the  sales  were  adjourned  from  time  to  time  at  the 
request  of  Pratt,  who  alleged  he  was  negotiating  a  loan  to  pay 
the  executions.  That  while  said  real  estate  was  advertised, 
some  of  the  creditors  of  the  Hamburgh  company  became  fear- 
ful it  might  be  sold  to  their  prejudice,  and  their  claims  be  lost, 
as  a  few  of  the  large  creditors  might  unite  to  the  injury  of  the 
smaller  ones ;  and  they  suggested  that  all  the  creditors  should 
unite  in  the  purchase  of  the  property,  for  their  common  benefit 
To  this  some  assented,  and  some  declined  unless  the  works 
could  be  carried  on  without  their  embarking  in  making  iron. 
It  was  then  suggested  that  the  premises  might  be  rented  out,  or 
perhaps  sold  at  private  sale,  and  the  loss  of  a  large  part  of  the 
claims  prevented  ;  and  while  the  matter  was  a  subject  of  discus- 
sion and  reflection  among  the  creditors,  some  person,  not  dis- 
tinctly recollected,  but  he  thinks  Brown  and  Lewis,  or  one  of 
them,  came  to  the  office  of  this  defendant,  and  stated  that  Pratt, 
or  some  one  he  would  appoint,  would  probably  be  lessee,  if  the 
Creditors  should  buy  the  premises  ;  and  afterwards  Pratt,  or  some 
one  on  his  behalf,  not  now  recollected  who,  asked  this  defend- 
ant if  an  arrangement  could  not  be  made,  by  which  the  credi- 
tors should  buy  the  property  and  lease  it  to  Pratt.  This  de- 
fendant said  he  thought  it  might  be  done.  The  sale,  however, 
was  adjourned  ;  but  from  these  suggestions,  the  creditors  pretty 
generally  concluded  that  it  would  be  to  their  advantage  to  buy 
the  property,  particularly  as  they  considered  that  the  value  of 
the  Hamburgh  property  would  be  greatly  increased  by  the  addi- 
tion of  the  Clinton  ore  bed  ;  the  Hamburgh  ore  bed  being  then 
esteemed  of  little  value.  But  the  terms  of  purchase,  and  what 
disposition  should  be  made  of  the  property,  was  left  undeter- 
mined, and  was  the  subject  of  conversation  from  time  to  time, 
for  several  weeks  before  the  sale. 

On  the  5th  of  December,  1838,  tfie  day  fixed  for  the  sale  of 
the  Clinton  property,  on  this  defendant's  being  informed  that 
the  sale  was  adjourned  to  the  6th,  and  that  some  arrangement 
between  the  said  creditors  was  likely  to  be  made,  and  that  his 
aid  was  desired,  he  left  Newton  and  went  to  Hamburgh.  The 
whole  business  was  then  discussed,  and  David  Ryerson  inform- 
ed the  creditors,  in  the  hearing  of  this  defendant,  that  he  had 


DECEMBER  TERM,  1845.  271 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

come  there  to  aid  the  creditors,  and  that  he  would  make  the  at- 
tempt to  raise,  by  loan,  the  money  to  buy  the  property  and  sat- 
isfy the  liens  on  it,  and  §30,000  was  thought  sufficient.  Ryer- 
6on  stated  openly  to  the  creditors,  and  he  believes  in  the  hear- 
ing of  Pratt,  or  of  some  of  the  persons  acting  with  him,  that 
be  did  not  know  that  he  could  raise  all  the  money;  that  he 
could,  perhaps,  furnish  part  himself,  and  would  go  to  New 
York  and  see  what  he  could  do  there;  that  it  might  be  neces- 
sary for  him  to  go  to  Pennsylvania  for  it,  and  that  he  would 
do  all  in  his  power  to  effect  the  loan.  It  was  then  again  sug- 
gested that  Pratt,  or  some  one  named  by  him,  would  take  a 
lease,  to  which  the  creditors  generally  assented,  if  they  became 
the  purchasers,  and  if  they  could  agree  on  the  terms  of  the 
iease.  It  was  then  also  proposed  that  Pratt  should  have  the 
privilege  of  buying  the  property,  on  payment  to  the  creditors  of 
their  claims  and  expenses,  whereupon  a  negotiation  was  entered 
into  between  some  of  said  Creditors  and  Pratt,  as  to  the  terms 
on  which  he  would  lease  the  premises,  and  to  give  time  for  con- 
sideration, and  a  proper  understanding  of  the  matter,  the  sale 
of  the  Clinton  property  was  adjourned  to  the  7th  of  December, 
at  Newton.  Pratt  and  many  of  said  creditors  went  to  Newton, 
and  the  terms  on  which  the  said  creditors  would  become  the 
purchasers,  and  how  they  should  dispose  of  the  property,  were 
iiilly  discussed  among  the  said  creditors*  There  was  a  variety 
of  propositions,  and  a' diversity  of  opinions,  occupying  all  night, 
and  to  twelve  o'clock  next  day;  this  defendant  and  Mr.  Hamil- 
ton acting  as  counsel  for  the  said  creditors.  The  result  was  the 
agreement  between  the  said  creditors,  dated  December  7th,  1838, 
stated  in  the  complainants'  bill.  The  terms  of  the  said  agree- 
ment were  settled  by  the  said  creditors  among  themselves,  and 
not  between  them  and  Pratt. 

Pratt  was  not,  to  his  knowledge  and  recollection,  present  with 
the  said  creditors  during  the  said  negotiation  among  themselves, 
and  some  of  the  creditors  refused  to  make  any  agreement  with 
him  resecting  the  property.  But  this  defendant  admits  it  was 
generally  expected,  and  believed  that  Pratt  would  become  the 
Jkssee,  or,  as  a  creditor,  said  Capt.  Pratt  was  to  have  the  refusal 
of  the  lease,  on  the  terras  agreed  on  by  the  said  agreement 
among  the  creditors ;  and  in  that  expectation,  Pratt  was  oc- 


272  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

casionally  consulted  as  to  the  terms  of  the  said  agreement 
between  the  said  creditors,  which  was  to  contain  the  terms  of 
any  future  lease ;  and  Pratt  made  several  suggestions  in 
relation  to  it,  he  and  his  counsel  occupying  another  room  iu 
the  same  house. 

That  this  defendant  signed  the  said  agreement  as  a  creditor; 
his  claim  was  then  about  $113,  afterwards  reduced  to  $40,  on 
an  account  stated  January  4th,  1839.  That  at  the  time  of 
making  the  said  agreement,  the  said  company  were  further 
indebted  to  him  as  assignee  of  Mr.  Longwell,  in  $85,  and  also 
in  $126,  the  amount  of  a  claim  of  Henry  Darrah  against  said 
company,  assigned  to  him,  which  claims  were  repeatedly  re- 
cognized by  the  said  company,  and  their  president,  Pratt. 

That  he  acted  also  as  attorney  for  six  other  creditors  of  the 
company,  (naming  them,)  John  L.  Adams,  since  deceased, 
being  one  of  them,  and  he  also  signed  said  agreement  in  their 
behalf;  and  thereby  this  defendant  and  those  for  whom  he  acted 
became  interested  in  the  said  real  estate  afterwards  purchased 
by  L'Hommedieu,  under  the  authority  and -instructions  of  the 
said  agreement.  He  admits  that  the  other  parties  signed  the 
said  agreement,  as  in  the  bill  is  stated,  and  thereby  became  in- 
terested in  the  said  real  estate  so  bought  by  L'Homrnedieu.  He 
does  not  know  what  was  the  expectation  of  the  said  creditors 
about  the  money  being  raised  immediately,  and  their  debts  paid  ; 
but  for  himself,  as  well  as  he  can  now  recollect,  he  may  have 
hoped  that  the  money  would  soon  be  raised,  but  did  not  expect 
that  more  would  be  raised  than  to  pay  off  the  purchase  money 
and  encumbrances. 

He  admits  that,  pursuant  to  the  terms  of  said  agreement, 
L'Hommedieu,  as  trustee  of  the  said  creditors,  and  not  of  Pratt, 
bought  the  Clinton  property  for  $4041.  That  Nones  was  pres- 
ent at  the  sale,  but  for  what  purpose  he  came,  and  what  money 
he  had  with  him,  or  whether  he  or*  any  other  person  would 
have  bid  more,  under  any  circumstances,  or  whether  any  per- 
son was  deterred  or  hindered  from  bidding,  by  any  person,  by 
persuasion,  threats  or  otherwise,  he  does  not  know;  but  some 
two  or  more  persons  besides  L'Hommedieu  bid  at  the  sale. 

He  admits  that  L'Hommedieu,  as  such  trustee  of  the  said 
creditors,  and  under  the  said  agreement,  afterwards  bought  at 


DECEMBER  TERM,  1845.  273 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

the  sheriff's  sale,  the  real  estate  of  the  Hamburgh  company. 
That  the  property  so  bought  by  L'Hommedieu  was  and  is  very 
valuable  ;  but  as  the  value  depends  on  (he  extent  of  the  ore-beds 
and  many  adventitious  circumstances,  to  fix  a  certain  value 
might  be  regarded  as  speculation.  But  he  was  and  still  is  wil- 
ling to  relinquish  all  his  claim  to  and  interest  in  the  property, 
on  being  paid  his  claim  ;  and  he  believes  most,  if  not  all  the 
said  creditors  are  like  minded.  He  does  not  know,  and  has  no 
certain  means  of  ascertaining  the  amount  of  the  debts  of  the 
Hamburgh  company  ;  but  it  was  understood  among  said  credi- 
tors, and  he  thinks  by  the  officers  of  said  company,  that  the 
Hamburgh  company's  debts,  together  with  the  purchase  money 
of  the  Clinton  property,  and  the  prior  encumbrances  against 
both  properties,  would  amount  to  between  $28,000  and  $30,000; 
and  he  has  since  seen  a  statement,  supposed  to  be  correct, 
amounting  to  more  than  $32,000. 

Soon  after  the  sale,  at  the  request  of  L'Hommedieu,  he  pre- 
pared a  lease  to  Pratt,  the  terms  of  which  were  intended  to  be 
in  conformity  with  the  agreement  of  the  said  creditors,  and  the 
instructions  therein  to  L'Hommedieu.  There  was  not,  to  his 
recollection  and  belief,  any  unnecessary  delay  therein  ;  but  on 
one  or  more  occasions,  some  of  the  creditors  having  urged  the 
settlement  of  all  the  claims,  and  particularly  of  Edsall's,  before 
any  lease  should  be  executed,  he  stated  that  to  Pratt,  and  urged 
the  speedy  settlement  of  all  the  accounts,  and  that  of  Edsall 
among  the  rest;  and  he  admits  that  Pratt  called  on  him  seve- 
ral times,  about  the  said  lease,  and  perhaps  urged  its  execution  ; 
but  thinks  Pratt  called  rather  for  the  purpose  of  settling  the 
terms  of  the  lease  and  the  articles  for  the  sale  of  the  said  pre- 
mises, than  of  urging  their  execution  ;  and  Pratt  saw  and 
knew  that  L'Hommedieu,  the  trustee,  was  obliged  frequently 
to  confer  witli  the  said  creditors  about  the  terms  of  said  lease 
and  of  said  agreement,  and  that  much  time  was  necessarily 
consumed  in  the  preparation  of  them  ;  and  this  defendant 
thinks  that  after  the  drafts  of  said  lease  and  articles  of  sale 
were  made,  one  or  both  were  taken  by  Pratt,  to  submit  to  his 
counsel  ;  and  that  he  returned  the  same  with  some  written  ob- 
servations and  suggestions  on  them  by  James  Spear,  of  Pater- 
son,  who  was  consulted  by  Pratt. 


274  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

He  admits  the  lease  and  articles  of  agreement  were  the  same 
as  stated  in  the  bill.  That  Pratt,  or  some  person  with  or  un- 
der him,  made  the  necessary  arrangements  to  carry  on  the 
works ;  but  on  what  funds  or  credit  he  cannot  state ;  nor  does 
he  know  whether  any  advances  were  made  by  L'Hornmedieu 
under  the  said  agreement.  That  no  money  was  raised  by  Ry- 
erson  on  the  said  property  ;  but  he  has  been  informed  by  Ryer- 
sou  that  he  made  great  exertions  to  do  so,  and  failed.  That 
this  defendant,  at  the  request  of  the  said  trustee  and  of  some  of 
the  creditors,  applied  to  several  capitalists  for  a  loan,  but  they 
all  declined  ;  and  he  believes  every  reasonable  effort  was  made 
without  success.  That  L'Hommedieu  and  Pratt  set  out  to  go 
to  New  York  to  make  some  arrangements  about  the  said  pro- 
perty, and  that  Pratt  was  arrested,  &c. 

He  was  present  at  a  meeting  of  some  of  the  creditors  at  Ham- 
burgh, to  consider  what  disposition  should  be  made  of  the  said 
real  estate,  Pratt  having,  as  they  believed,  failed  to  fulfill  the 
terms  of  said  lease,  and  forfeited  the  same,  the  dam  and  works 
being  in  a  state  of  dilapidation,  and  exposed  to  great  danger ; 
and  some  one  there  proposed  that  the  creditors  should  take  pos- 
session, and  put  the  works  in  operation.  Some  objected,  on 
different  grounds ;  but  all  the  creditors,  except  a  few,  objected 
to  involve  themselves  in  the  hazard  of  that  business,  and  some 
said  they  would  rather  lose  their  claims  ;  and  he  thinks  Edsall 
said  all  the  creditors  would  be  too  many,  but  with  four  or  five 
he  could  name  the  business  might  be  driven  with  advantage ; 
and  this  defendant  stated  to  said  creditors  that  whatever  might 
be  their  right  to  the  possession,  it  would  not  be  liberal  to  Pratt, 
in  his  then  unhappy  situation  ;  and  thereupon  the  said  creditors 
requested  this  defendant,  who  was  going  to  Trenton,  to  call  on 
Pratt,  and  ascertain  his  views  and  prospects  in  relation  to  the 
performing  his  contracts  for  the  said  property.  That  on  his  re- 
turn from  Trenton,  being  in  company  with  Robert  Hamilton, 
he  invited  him  to  go  with  him  to  see  Pratt, and  they  went;  and 
this  defendant  stated  to  Pratt  that  the  creditors  were  anxious  to 
know  what  he  meant  to  do  with  the  said  property,  and  that  it 
needed  attention,  and  that  some  of  the  creditors  had  proposed 
to  take  possession  and  carry  on  the  works.  Pratt  said  lie  was 
willing  the  creditors  should  take  possession,  and  wished  they 


DECEMBER  TERM,  1845.  275 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

had  done  so  long  before ;  that  he  had  given  up  all  hope  of  do- 
ing anything  with  it,  and  that  he  freely  gave  up  all  his  right 
to  it,  and  hoped  the  creditors  would  be  able  to  make  their  mo- 
ney out  of  it.  This  defendant  told  the  creditors,  at  Hamburgh, 
of  the  result  of  his  interview  with  Pratt ;  but  he  does  not  now 
recollect  of  any  further  proposition  being  made  to  take  posses- 
sion of  the  property  ;  but  about  that  time,  or  a  few  days  after, 
he  heard  that  Edsall  was  in  possession  of  the  whole,  or  some 
part  of  it,  claiming  it  as  mortgagee  in  possession;  and,  soon 
after,  he  heard  that  L'Hommedieu  had  entered  into  partner- 
ship with  Edsall ;  and  he  was  afterwards  told  by  L'Hommedieu 
that  it  was  so.  And  this  defendant  then  reminded  L'Homrae- 
dieu,  that  he  was  the  trustee  of  the  creditors,  and  might  and 
perhaps  would  be  held  responsible  for  the  use  of  the  property  ; 
and  suggested  to  him  the  propriety  of  so  keeping  his  books  of 
account  as  to  be  able  to  render  a  satisfactory  account,  if  required. 
He  has  no  knowledge  of  the  manner  or  precise  time  of  Edsali 
and  L'Hommedieu,  or  either  of  them,  taking  possessiou  ;  nor 
of  the  personal  property  then  on  the  premises;  nor  what  profits 
have  been  realized  from  the  furnace,  except  that  during  the  first 
blast  made  by  Edsall  and  L'Hommedieu,  he  heard  them  say 
their  business  was  very  profitable,  and  he  has  since  heard  them 
say  that  their  second  blast  was  not  profitable. 

He  says  that  after  Pratt  was  liberated,  he  came  several  times 
to  Hamburgh,  with  divers  persons  who,  he  said,  were  desirous 
of  buying  the  property  and  works,  and  on  those  occasions  the 
creditors,  or  such  of  them  as  could  conveniently  be  assembled, 
were  called  together,  and  propositions  were  made  by  Pratt  for 
the  purchase  ;  and  on  some  or  all  those  occasion?,  the  creditors 
so  assembled  have  stated  to  Pratt  that  they  would  ask  no  more 
than  to  be  paid  their  debts  and  expenses;  and  that  if  he  would 
negotiate  a  sale  he  could  have  the  benefit  of  all  he  could  get 
over;  and  at  other  times  the  creditors,  or  some  of  them,  have 
offered  to  make,  for  his  benefit,  a  liberal  discount  from  their 
claims,  if  he  could  effect  a  sale  ;  and  that  in  all  such  negotia- 
tions, Pratt  did  not,  to  the  knowledge  or  belief  of  this  defend- 
ant, assert  any  right  or  interest  in  the  premises  ;  but,  as  this  de- 
fendant then  thought  and  still  thinks,  relied  entirely  on  the  lib- 
erality of  the  said  creditors. 


276  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

And  this  defendant  submits  himself  to  the  judgment  of  the 
court;  and  if  on  the  whole  case,  a  trust  in  L'Hommedieu  for 
the  use  of  Pratt  shall  result  and  be  decreed,  he  prays  an  account, 
and  that  L'Hommedieu,  as  trustee  of  the  said  creditors,  may 
account  for  the  rents  and  profits  of  the  furnace  and  real  estate, 
and  pay  to  the  said  creditors  the  amounts  due  them,  by  a  short 
day  ;  or  that  the  premises  may  be  sold,  and  the  said  creditors 
paid  out  of  the  proceeds,  in  their  order  of  preference. 

The  common  replications  were  put  in. 

January  20th,  1843,  decree  pro  confesso,  was  entered  against 
all  the  defendants  except  Eiias  L'Hommedieu,  Joseph  E.  Edsall 
and  Daniel  Haines. 

The  substance  of  the  testimony  is  as  follows  : 

Aaron  B.  Nones. — He  believes  the  ore-bed  was  advertised  to 
be  sold  on  the  5th  of  December,  1838  ;  Joseph  E.  Edsall  and 
Elias  L'Hommedieu  were  present  on  that  day  ;  Edward  W. 
Pratt  was  also  there  ;  also  Daniel  Haines,  Robert  A.  Linn,  Ro- 
bert Lewis  arid  Joseph  M.  Brown  ;  the  sale  did  not  take  place 
on  that  day,  but  was  adourned  ;  he  understood  from  Edsall 
and  L'Hommedieu  and  several  other  creditors,  that  the  sale  was 
adjourned  in  consequence  of  an  arrangement  entered  into  be- 
tween the  creditors  and  Pratt,  respecting  the  sale  of  the  proper- 
ty ;  he  made  no  secret  of  why  he  went;  it  was  generally 
known  and  understood  there,  why  he  did  go  ;  he  was  asked  by 
several  if  he  came  to  purchase  the  properly,  and  he  answered 
"  yes;"  there  was,  on  the  day  the  sale  was  advertised  to  take 
place,  a  meeting  of  persons,  said  to  be  the  creditors  of  the  Ham- 
burgh company  and  Pratt,  of  considerable  duration  ;  Edsall  and 
L'Hommedieu  were  present  with  the  creditors ;  during  that 
meeting,  witness  and  others  were  waiting  in  expectation  of  the 
sale  ;  he  understood  it  to  be  a  meeting  confined  to  Pratt  and 
the  creditors  ;  immediately  after  that  meeting  broke  up,  Pratt 
submitted  to  witness  a  proposition  in  writing,  said  to  have  been 
made  to  him  at  that  meeting;  witness  saw  Pratt  come  out  of 
the  room  where  the  meeting  was  held,  with  the  paper  in  his  hand  ; 
after  the  meeting  broke  up,  witness  had  a  conversation  with 
Edsall,  L'Hommedieu,  and  several  of  the  other  creditors,  respect- 
ing what  took  place  at  that  meeting  ;  Edsall  and  L'Hommedieu 
told  witness  that  they  had  an  understanding  with  Pratt  respect- 


DECEMBER  TERM,  1845.  277 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

ing  the  sale  of  the  property ;  that  the  sale  had  been  adjourned 
for  a  day  or  two,  to  give  Pratt  an  opportunity  of  reflecting  upon 
the  proposition  ;  witness  thinks  the  paper  Pratt  handed  him 
was  in  the  handwriting  of  Daniel  Haines;  he  does  not  know 
what  has  become  of  that  paper ;  he  took  a  copy  of  it  on  the 
same  day.  [Being  shown  a  paper  marked  Exhibit  E  on  the  part 
of  the  complainants,  he  says] — That  is  an  exact  copy  of  the  origi- 
nal paper  handed  to  him  by  Pratt;  it  is  in  witness'  handwrit- 
ing; he  had  a  conversation  with  Edsall,  L'Hommedieu,  and 
several  others,  respecting  the  contents  of  that  paper;  he  stated 
prior  to  the  sale,  and  it  was  known  that  if  an  arrangement 
was  made  between  the  creditors  and  Pratt,  witness  would  not 
bid  at  the  sale;  he  thinks  it  was  two  days  after  that  meeting 
of  the  creditors,  that  the  ore-bed  was  sold  ;  and  before  the  sale 
of  the  mine  tract,  or  ore-bed,  he  distinctly  understood  that  an 
arrangement  had  been  entered  into  between  Pratt  and  the  cred- 
itors, by  which  L'Hommedieu  was  to  purchase  the  ore-bed  ; 
he  understood  this  from  Edsall,  L'Hommedieu,  and  others;  it 
was  in  consequence  of  that  arrangement  that  witness  did  not 
bid  on  the  property;  he  estimated  the  property  to  be  worth 
$100,000;  he  had  conversed  with  Edsall  and  L'Hommedieu 
respecting  its  value,  and  in  making  the  estimate,  relied  more 
particularly  upon  what  Edsall  told  him,  than  what  any  one  else 
told  him  ;  when  the  sheriff  sold  the  ore-bed,  Joseph  II.  Pettis, 
of  New  York,  was  present,  and,  witness  thinks,  bid  upon  it ;  he 
does  not  know  why  Pettis  commenced  bidding,  but  while  he 
was  bidding,  witness  went  to  him  and  told  him  it  was  foolish  for 
him  to  bid,  for  an  arrangement  had  been  made  with  the  credi- 
tors, and  he,  Pettis,  knew  what  the  arrangement  was ;  wit- 
ness interfered  and  Pettis  stopped  bidding ;  recollects  Pratt's 
calling  Pettis  out  and  speaking  to  him  respecting  his  bidding, 
and  thinks  Edsall  and  L'Hommedieu  were  present;  that  is  his 
impression  ;  the  amount  of  what  Pratt  said,  was,  that  Pettis 
knew  what  the  arrangement  was,  and  Pettis'  bidding  was  only 
hurting  Pratt ;  at  a  subsequent  day  of  the  same  month,  the 
Hamburgh  property  was  sold,  and  all  was  sold  under  the  same 
understanding ;  recollects,  while  he  was  up  there,  hearing 
about  a  loan  for  $30,000,  to  be  made  on  the  property  j  under- 
stood distinctly  from  Edsall,  L'Hommedieu,  and  others,  that  the 


278  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

property  was  to  be  sold,  and  L'Hommedieu  was  to  buy  it,  in 
order  to  perfect  the  title  and  enable  him  to  make  a  mortgage; 
the  sum  stated  to  witness  was  $30,000,  which  sum,  it  was 
said,  would  be  sufficient  to  pay  off  the  debts  of  the  company, 
and  to  give  Pratt  $2000  with  which  to  carry  on  the  works; 
the  property  was  to  remain  in  possession  of  Pratt,  and  after 
the  debts  were  paid,  was  to  be  re-conveyed  to  Pratt ;  witness 
«aw  David  Ryerson  there,  and  heard  him  speak  about  this  loan, 
but  does  not  remember  that  it  was  in  the  presence  of  Edsall 
and  L'Hommedieu  ;  he  heard  Ryerson  speak  of  it  'the  same 
afternoon  the  arrangement  was  made  between  the  creditors  and 
Pratt ;  Ryerson  confirmed  to  witness  what  he  had  heard  from 
others,  that  Ryerson  was  either  to  loan,  or  procure  a  loan  of 
$30,000 ;  witness  has  had  conversation  with  Edsall  since  the 
time  above  spoken  of;  he  understood  Edsall  then,  as  he  had 
always  understood  him,  that  when  Pratt  complied  with  the 
lease,  the  property  was  to  revert  to  him;  recollects  distinctly 
of  having  heard  from  Mr.  Haines,  Edsall,  and  several  other  of 
the  creditors,  that  the  reason  v/hy  the  clause  for  the  lease  to 
Pratt  was  not  inserted  in  the  agreement,  was  because  it  would 
show  a  collusion  between  Pratt  and  the  creditors  to  the  agree- 
ment, and  vitiate  the  sale ;  knows  that  Pratt  requested  them 
to  execute  an  agreement  to  give  him  a  lease  and  the  right  of 
redemption,  prior  to  the  sale,  and  they  declined  for  the  reasons 
witness  has  stated. 

Cross-examined. — When  he  went  to  attend  the  sale,  he  had 
about  eleven  or  twelve  thousand  dollars  with  him,  and  authority 
to  draw  for  as  much  more  as  he  wanted ;  does  not  know  that 
he  could  state  the  amount  nearer;  does  not  know  whether 
Pratt  owed  witness'  brother  anything  at  that  time;  believes 
Pratt  owes  his  brother  since  that  time ;  does  not  know  the  pre- 
cise amount,  understands  it  is  large ;  he  presumes  the  reason 
why  Edsall  and  L'Hommedieu  stated  to  him  the  object  of  ad- 
journing the  sale  was,  because  they,  as  well  as  others,  had 
heard  and  knew  the  object  of  his  being  there,  as  it  was  talked 
of,  he  believes,  in  the  room  among  the  creditors;  they  each 
stated  it  to  witness,  but  whether  they  were  both  together  at  the 
time,  witness  cannot  say  ;  others  also  stated  to  witness  what 
had  been  agreed  upon  at  that  meeting;  he  thinks  Mr.  Haines 


DECEMBER  TERM,  1845.  279 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

told  him  the  same  thing;  heard  it  from  Mr.  Brown  also;  and 
thinks  Mr.  Holcombe  told  him  the  same  thing;  in  conversa- 
tion with  Edsall  and  L'Hommedieu  and  Holcombe,  and  several 
other  creditors  whose  names  witness  did  not  know,  who  said  it 
was  a  first- rate  arrangement  for  Pratt,  witness  said  he  would 
not  bid  ;  Pratt  was  present  at  some  of  the  conversations ;  Pet- 
tis  bid  on  the  property,  but  whether  to  an  amount  exceeding  the 
executions,  witness  cannot  say;  his  impression  is,  he  did  not; 
at  the  sale,  Pratt  called  Pettis  apart  from  the  place  where  they 
•vere  selling;  at  that  time  L'Hommedieu  was  near  enough  to 
make  a  bid  ;  we  were  all  within  a  few  feet  of  each  other,  and 
he  supposes  Edsall  and  L'Hommedieu  heard  what  Pratt  said  to 
Pettis,  as  witness  heard  it;  after  the  adjournment  of  the  meet- 
ing of  creditors  at  Hamburgh,  Edsall  and  L'Hommedieu  stated 
the  particulars  of  the  loan,  and  again,  at  Newton,  Mr.  David 
Ryerson  told  witness  about  the  loan  ;  Pratt  was  present  at  the 
time. 

Direct  examination. — Witness  distinctly  understood  at  the 
time,  that  L'Hommedieu  was  to  purchase  the  property  for  the 
benefit  of  Pratt  and  the  creditors,  and  to  perfect  the  title  in 
L'Hommedieu  ;  he  was  prevented  from  purchasing  the  property 
on  account  of  that  understanding,  and  should  have  purchased 
it  if  it  had  not  been  for  that  understanding. 

Franklin  Holcombe,  for  the  complainants. — Was  employed 
and  connected  with  the  Hamburgh  company  a  portion  of  the 
year  1838,  as  agent  for  the  company  ;  was  living  at  Hamburgh 
in  1838,  when  the  sheriff  advertised  the  ore- bed1  for  sale,  and 
was  present  at  the  public  house  where  the  property  was  adver- 
tised to  be  sold,  when  the  meeting  of  the  creditors  was  held 
there,  and  saw  Pratt  there,  Aaron  B.  Nones,  Elias  L'Homme- 
dieu, Joseph  E.  Edsall,  Brown,  and  other  creditors  of  the  com- 
pany ;  the  sale  was  adjourned  from  Hamburgh  to  Newton  for  a 
day  or  two;  understood  Nones  had  come  there  to  be  a  bidder  at 
the  sale ;  so  far  as  witness  understood,  it  seemed  to  be  known  that 
Nones  was  there  for  that  purpose ;  understood  Pratt  and  the  credi- 
tors were  about  effecting  an  arrangement,  and  that  was  why  the 
sale  was  postponed  ;  at  the  time  of  the  adjournment  to  Newton, 
witness  understood  that  a  loan  was  to  be  obtained  on  the  pro- 
perty, and  a  lease  was  to  be  given  to  Pratt ;  understood  Pratt 


280  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

was  to  have  a  right  of  redemption  of  the  property,  to  be  in- 
serted in  an  article ;  that  L'Hommedieu  was  to  be  the  purchaser ; 
the  amount  of  loan  talked  of  was  $30,000,  or  so  much  less  as 
the  debts  of  the  company  should  prove  to  be;  understood 
L'Hommedieu  was  to  purchase  the  property  in  trust,  for  the 
purposes  mentioned ;  the  facts  witness  has  mentioned  were 
generally  talked  of  among  the  creditors,  Brown,  Robert  Lewis, 
Pratt,  Edsall,  Henry  J.  Simpson,  William  Simpson,  Francis 
Hamilton  ;  he  had  no  conversations  direct  with  L'Hommedieu 
on  the  subject,  but  heard  him  make  some  statements  on  the 
subject ;  L'Hommedieu  stated  he  had  agreed  to  give  a  lease  to 
Pratt  for  the  property;  witness  has  no  strong,  distinct  recollec- 
tion of  it.  but  his  impression  is,  he  saw  Edsall  in  conversation 
with  Nones ;  witness  was  present  at  the  sale  at  Newton,  a  day 
or  two  afterwards,  and  understood  the  sale  took  place  on  the 
terms  he  had  heard  of  at  Hamburgh  ;  he  had  no  conversation 
with  L'Hommedieu  on  the  subject,  but  had  considerable  con- 
versation with  Edsall,  at  Newton,  at  which  Edsall  stated  to 
witness  the  understanding  under  which  the  property  was  to  be 
sold,  and  that  Pratt  had  consented  to  the  sale  on  the  terms 
talked  of;  Edsall  stated  that  he  and  sorae  of  the  creditors  pre- 
ferred giving  the  lease  to  witness,  because  he  was  practically 
better  acquainted  with  the  business  than  Pratt  was  ;  Edsall  af- 
terwards said,  that  on  consultation  with  the  creditors,  his,  Ed- 
sail's,  proposition  was  rejected,  and  Pratt's  name  put  in  the 
lease;  witness  understood  the  principal  object  had  in  view  in 
selling,  was  to  secure  their  claims,  by  uniting  and  perfecting  the 
two  titles  in  one  person  ;  witness  means  by  the  two  titles,  the 
Hamburgh  and  Clinton  companies  ;  the  ore-bed  belonged  to  the 
Clinton  company,  but  the  Hamburgh  company  derived  their  ore 
from  it;  he  does  not  know  that  lie  had  any  distinct  conversation 
with  Edsall,  as  to  who  was  to  make  the  loan,  but  that  was  a  mat- 
ter generally  understood;  witness  understood  the  loan  was  pro- 
mised ;  Ryerson  said,  in  witness'  presence,  he  would  undertake 
to  procure  the  loan,  if  the  title  could  be  perfected  in  one  person  ; 
he  aaid  the  money  was  to  be  secured  by  bond  and  mortgage  on 
the  property  ;  tlie  creditors  were  to  unite,  in  proportion  to  their 
shares,  in  that  bond,  to  guaranty  the  payment  of  the  money  ; 
witness  understood  this  arrangement  prevented  Nones  from 


DECEMBER  TERM,  1845.  281 

Hamburgh  Manufacturing  Co.  v.  Edsmll. 

bidding  at  the  sale;  it  was  considered  that  if  there  was  any 
written  agreement  between  Pratt  and  the  creditors,  prior  to  the 
sale,  it  would  vitiate  the  sale ;  it  was  pressed  on  the  part  of 
Pratt,  to  have  the  agreement  executed  previous  to  the  sale ; 
witness  supposes  Pratt  to  have  relied  on  their  verbal  promises, 
and  on  their  honor ;  Pratt  requested  witness,  a  very  few  min- 
utes before  the  sale,  to  go  and  get  from  the  creditors  a  renewal 
of  their  promises,  and  they  began  crying  the  sale  before  wit- 
ness had  seen  them  all  ;  he  spoke  to  Joseph  M.  Brown  and 
William  Simpson,  when  they  commenced  crying  the  sale,  and 
witness  desisted  going  to  any  more  ;  Brown  said  the  agreement 
with  Pratt  should  certainly  be  carried  into  effect;  it  was  the 
understanding  that  the  Hamburgh  company  should  go  on  and  set- 
tle with  the  creditors,  in  order  to  ascertain  the  amount  of  the  re- 
spective debts  ;  witness  and  Pratt  went  on' with  several  of  the 
creditors  to  ascertain  the  amount  of  the  respective  debts;  ic 
believes  that  Pratt,  in  the  company's  office,  in  the  presence  of 
witness,  did  call  on  Edsall  for  his  account ;  there  was  consid- 
erable talk  about  Edsall's  account ;  he  said  Horace,  his  son,  was 
making  it  out;  he  never  rendered  his  account,  to  witneess* 
knowledge  ;  he  said  Horace  had  made  it  out  up  to  some  par- 
ticular date,  and  he  wanted  it  examined  and  passed  upon  up  to 
that  date ;  witness  thinks  Pratt  waited  at  Hamburgh  some 
days  for  the  purpose  of  getting  Edsall's  account ;  thinks  the  clerk 
of  the  company  was  sent  to  Edsall  to  get  his  account,  but  can- 
not say  how  often  ;  the  Hamburgh  company  had  a  store  on  their 
premises,  where  they  sold  dry  goods,  groceries,  &c. ;  Edsall  had 
a  running  account  with  the  company  for  two  or  three  years  ; 
he  purchased  a  pretty  considerable  quantity  of  iron  from  the 
company ;  also  a  pretty  good  account  for  store  goods  ;  he  was 
in  the  habit  of  giving  orders  on  the  store  ;  on  one  of  the  com- 
pany ledgers  the  account  against  Edsall,  witness  thinks,  was 
something  like  $1000;  on  another  ledger  there  should  bean 
account  for  a  boat  load  of  iron,  twenty-five  or  twenty-seven 
tons ;  the  iron  must  have  been  worth  about  $30  per  ton  ;  there 
were  other  charges  against  him  on  that  ledger;  there  was  an- 
other account  for  iron  against  Edsall,  which  should  be  upon 
that  ledger,  for  about  seventy  or  eighty  tons;  Edsall  had  other 
iron,  at  one  time  about  fifty-three  or  fifty-five  tons ;  knows  the 
VOL.  i.  s 


282  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

fact  of  Edsall  and  L'Hommedieu  taking  possession  of  the  pro- 
perty of  the  Hamburgh  company;  recollects  Pettia' bidding 
for  the  ore  bed  ;  did  not  hear  L'Hommedieu  and  Ed.sall  say  any- 
thing to  Pettis  about  his  bidding,  but  Ed.sall  requested  witness 
to  go  to  Pettis  and  stop  his  bidding  ;  and  also  requested  Pratt  to 
go  to  Pettis,  and  Pratt  did  go  and  stop  his  bidding. 

Cross-examined. — His  impression  is,  Pettis  bid  the  property 
np  to  an  amount  exceeding  the  two  executions  ;  he  is  under  the 
impression  there  were  but  two  bidders,  Pettis  and  L'Hommedieu  ; 
from  information,  he  should  say  Edsall  furnished  the  principal 
supply  of  coal  for  the  first  blast  the  company  made,  and  fur- 
nished some  wood  ;  has  heard  it  said  he  furnished  the  company 
with  one  team  and  one  wagon,  a  three-horse  team  ;  the  com- 
pany got  grain  and  flour  and  feed  at  his  mill;  the  company 
never  made  out  their  account  in  full  against  Edsall,  to  witness7 
Knowledge. 

Direct  examination. — At  Newton,  the  evening  before  the 
sale,  Edsall  proposed  an  arrangement  to  have  L'Hommedieu 
bid  off  the  property  without  any  arrangement  at  all  as  to  the 
said  sale,  and  to  have  three  or  four  join  in  the  arrangement; 
and  requested  witness  to  communicate  it  to  Pratt,  and  see  if  he 
would  go  into  it ;  said  the  object  was  to  transfer  the  property 
and  cut  off  all  the  other  claims  ;  Pratt  was  to  come  in  for  a 
share ;  the  arrangement  was  to  be  effected  by  breaking  up  the 
other  arrangement ;  L'Hommedieu  called  witness  aside,  and 
asked  him  if  Edsall  had  made  a  certain  proposition  to  him,  that 
he  thought  very  well  of  the  proposition  and  he  was  willing  to 
go  into  the  arrangement;  witness  started  to  communicate  it  to 
Pratt,  and  found  he  had  gone  to  lawyer  Thomson's ;  and  wit- 
ness placed  himself  in  a  situation  by  which  lie  supposed  he 
should  see  him,  but  missed  him,  and  soon  after  saw  Edsall, 
who  said  to  witness,  I  thought  you  said  you'd  see  Pratt ;  I  have 
seen  him  and  spoken  to  him,  supposing  you  had  communicated 
to  him  ;  the  captain  said  he'd  think  of  it,  but  did  not  receive 
the  proposition  very  favorably. 

Cross-examination  resumed. — The  proposition  of  Ed.sall 
was,  substantially,  that  four  were  to  join  in  the  purchase  ;  on 
the  24th  September,  1838,  there  was  a  sale  of  the  personal  property 
of  the  Hamburgh  company,  consisting  of  teams,  wagons,  wood, 


DECEMBER  TERM,  1845.  2S3 

Hamburgh  Manufacturing  Co.  v.  EdBall. 

charcoal,  &c.,  necessary  to  carry  on  the  furnace,  the  furnace 
then  being  in  full  blast;  Edsall  purchased  most  of  this  personal 
property,  and  told  witness  he  had  made  arrangements  with  the 
other  purchasers,  so  that  he  had  control  of  pretty  much  all  the 
personal  property ;  Edsall  made  a  verbal  arrangement  with 
Pettis  and  witness,  by  which  they  were  to  have  the  stock,  wood 
and  coal,  teams  and  tools,  to  carry  forward  the  blast;  and  that 
half  the  iron  made,  from  day  to  day,  was  to  be  delivered  to 
Edsall,  until  the  amount  of  iron  received  should  equal  the 
amount  that  he  had  bought  the  personal  property  in  for,  when 
the  balance  of  all  that  personal  property  was  to  be  set  over  to 
witness  individually;  we  proceeded  to  use  the  stock  and  to  de- 
liver iron  from  day  to  day ;  afterwards,  a  written  consent  was 
given  by  witness,  that  the  iron  Edsall  had  received  and  should 
receive  under  that  verbal  contract,  might  be  applied  by  him  to 
the  credit  of  the  Hamburgh  company;  the  iron  spoken  of,  as 
delivered  under  these  agreements,  witness  supposes  amounted  to 
seventy  or  eighty  tons,  and  which  is  the  same  parcel  of  iron 
above  spoken  of  by  witness;  the  written  agreement  spoken  of 
by  witness  was  brought  to  witness  by  Edsall  and  Hamilton  ; 
and  that  was  a  consent  on  witness'  part,  that  Edsall  might  ap- 
ply the  iron  as  above  described;  the  paper  was  presented  to 
witness  at  Hamburgh,  and  he  signed  it,  and  Hamilton  signed 
it  as  a  witaess  ;  witness  and  Edsall  have  not  been  on  sociable 
terms  formerly  ;  he  had  a  suit  against  me ;  we  are  now  on 
good  terms ;  witness  is  not  sensible  of  any  feelings  that  would 
influence  his  testimony  against  Edsall. 

Joseph  M.  Brown,  for  the  complainants. — In  December, 
1838,  he  was  one  of  the  firm  of  Brown  &  Lewis;  that  firm 
was  creditor  of  the  Hamburgh  Co.  and  also  of  the  Clinton  Co. 
at  that  time;  the  firm  was  one  of  the  party  to  an  agreement 
between  the  creditors  of  the  Hamburgh  Co. ;  the  creditors  had 
a  meeting,  at  which  witness  was  present;  Pratt  was  there; 
before  the  property  was  sold,  there  was  an  agreement  that  it 
should  be  set  up  and  sold  under  an  execution  which  Brown  and 
Lewis  had  against  the  Clinton  Co.;  the  written  agreement 
was  drawn  up  at  Mr.  Haines'  office  in  Hamburgh ;  previous 
to  the  sale  by  the  sheriff,  there  was  no  written  agreement  with 
Pratt  by  the  creditors ;  but  as  far  as  witness  understood,  Pratt 


284  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

had  the  right  to  redeem  the  property  if  ht  complied  with  an 
agreement  which  was  to  be  executed  after  the  sale;  the  firm 
of  Brown  &  Lewis  had  a  judgment  against  the  Clinton  Co., 
and  under  that  judgment  an  execution  was  issued,  and  under 
that  execution  the  ore-bed  was  advertised  to  be  sold ;  witness 
saw  Pratt  in  New  York;  Pratt  wished  witness  to  adjourn  the 
sale,  witness  replied  that  he  was  only  one  of  the  firm  of 
Brown  &  Lewis,  and  could  not  adjourn  it  without  Lewis' 
consent;  but  if  he  could  adjourn  it,  he  would  be  willing  to  do 
so,  provided  he  could  be  satisfied  the  money  would  be  paid  ; 
Pratt  then  wished  witness  to  go  to  Hamburgh  with  him,  and 
witness  consented  to  do  so  after  Pratt  had  referred  him  to  Mor- 
ris Robinson,  and  Silas  M.  Stillwell,  and  W.  C.  Boardman,  who 
gave  witness  the  strongest  assurances  the  money  would  be  raised 
by  a  loan ;  witness  went  to  Hamburgh  with  Pratt  in  com- 
pany with  Nones;  when  witness  go>  there,  inquiries  we're  made 
of  him  respecting  the  prospects  of  raising  the  money;  he  re- 
plied that  Pratt  had  failed  to  raise  the  money,  and  wanted  a 
still  further  adjournment,  if  it  could  be  obtained;  some  of  the 
creditors  told  witness  it  would  be  all  folly  to  wait  any  longer,  as 
the  sale  had  been  adjourned  two  or  three  times  already  ;  about 
this  time  the  proposition  of  Mr.  Ryerson -was  made;  Ryersou 
proposed  that,  if  the  property  could  be  so  arranged  as  to  be  se- 
curity to  him,  he  would  undertake  to  raise  the  money  ;  it  was 
then  suggested,  either  by  some  of  the  creditors,  or  by  Ryerson, 
or  Mr.  Haines,  that  the  property  should  be  sold  and  bought  in 
by  L'Hommedieu,  for  the  purpose  of  perfecting  the  title  in 
L'Hommedieu,  in  order  that  he  might  make  a  legal  encum- 
brance on  it  as  security  to  Ryerson ;  witness  then  suggested, 
that  in  case  it  was  sold,  Nones  might  buy  it  in  ;  he  thinks 
about  this  time  he  was  asked  by  some  of  the  creditors  if  he 
knew  Nones,  who  he  was,  and  what  he  was,  and  whether  he 
had  anything  to  buy  it  in  with  or  not;  witness  replied,  as 
near  as  he  recollects,  that  he  knew  little  or  nothing  about  Nones, 
except  that  he  had  seen  him  at  his  brother's  office  a  few  times  ; 
and  that  when  about  leaving  the  office  to  go  to  Hamburgh, 
Pratt  and  witness  stood  near  the  door  of  the  hall,  when  witness 
inquire*!  of  Pratt  what  lie  was  waiting  for,  who  replied  that 
Noues  was  waiting  for  his  brother  to  get  some  money;  Mr.  J. 


DECEMBER  TERM,  1845.  285 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

B.  Nones  came  in  and  gave  his  brother  some  money,  but  what 
amount  witness  does  not  know,  and  then  Pratt  replied  they 
were  ready  to  go;  it  was  talked  over  then  among  the  creditors 
that  it  might  be  Nones  had  the  money  to  buy  it ;  and  then 
Haines  suggested  it  should  be  made  known  to  Pratt  in  some 
way  what  Ryerson  had  proposed  to  do,  and  why  it  was  advisa- 
ble to  have  the  property  sold ;  this  was  to  prevent  Nones' 
buying  the  property  and  frustrating  the  arrangement ;  these 
matters  were  communicated  to  Pratt ;  witness  does  not  know 
whether  Pratt  interfered  to  prevent  Nones  from  bidding,  but 
Pratt  and  Nones  were  talking  together ;  the  sale  was  then  ad- 
journed for  a  day  or  two  to  Newton  ;  witness  supposed  the 
adjournment  was  made  to  give  the  creditors  time  to  perfect  the 
arrangement,  because  there- was  but  little  time  left,  and  it  was 
feared  Nones  would  buy  it  in  ;  witness  did  not  understand  that 
Pratt  was  to  remain  in  possession  of  the  property  ;  L'Homme- 
dieu  was  to  become  the  purchaser,  and  take  the  title  and  pos- 
session of  the  property,  and  then  he  was  to  make  a  bond  and 
mortgage  to  David  Ryerson  to  secure  the  payment  of  a  loan  ; 
and  L'Hommedieu  was  to  give  Pratt  a  lease  of  the  property  ; 
witness  understood  Pratt  was  to  have  the  right  of  redeeming 
the  property,  on  complying  with  that  lease;  witness  had  not, 
and  presumes  no  creditor  had,  any  object  in  view  except  to  se- 
cure their  debts;  this  understanding  was  had  previous  to  the 
sale,  and  to  keep  Nones  from  bidding  j  it  was  understood  that 
L'Hommedieu  was  to  act  as  trustee  for  the  creditors  ;  he  under- 
stood that  if  Pratt  had  effected  his  loan  in  New  York,  the  title 
would  have  been  in  Pratt  in  fee  simple,  with  no  encumbrance 
but  the  mortgage  upon  it;  but  as  it  was,  L'Hommedieu  would 
hold  the  property,  to  be  deeded  back  by  L'Hommedieu  to  Pratt, 
when  Pratt  complied  with  the  agreement  entered  into  with 
L'Hommedieu  ;  Edsall  and  L'Hommedieu  have  both  told  wit- 
ness they  were  in  possession  of  the  property;  L'Hommedieu 
has  never  rendered  any  account  of  his  trust,  and  never  offered 
to  do  so  to  witness;  witness  called  upon  L'Hommedieu  two  or 
three  times  to  bring  the  matter  to  a  close;  L'Hommedieu  offer- 
ed to  buy  witness'  claim,  and  offered  him  fifty  cents;  and  Ed- 
sall also  offered  to  buy  at  fifty  cents;  two  years  ago  this  sum- 
mer, Edsall  met  witness  in  Broadway,  and  offered  him  twenty- 


286  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

five  cents  for  his  claim;  at  first,  witness,  when  in  Broadway, 
offered  to  take  fifty  cents,  and  Edsall  offered  twenty-five;  at 
the  time  of  the  sale  of  the  property,  witness  had  an  opinion  as 
to  the  value  of  it ;  he  thought  if  the  ore- bed  turned  out  as  it 
was  expected,  it  would  be  worth  $20,000 ;  he  formed  his 
opinion  from  Mr.  Fowler's  opinion,  who  thought  if  it  held  out 
as  it  looked,  it  would  be  worth  ten  or  fifteen  thousand  dol- 
lars. 

Cross-examined. — The  agreement,  as  witness  understood  it, 
was  thatL'Hommedieu  was  to  buy  in  the  property,  as  trustee  for 
the  creditors,  and  to  raise  money  upon  it,  if  he  could,  sufficient 
to  pay  off  the  creditors;  and  witness  felt  sanguine,  from  what 
Ryerson  said,  that  the  money  would  be  raised,  without  any  if 's 
or  and's  about  it;  he  understood  Ryerson  to  say  that  if  a  legal 
encumbrance  could  be  given  on  the  property,  he  had  no  hesita- 
tion in  saying  a  loan  of  that  kind  could  be  raised  ;  and  Ryerson 
said  he  had  about  $6000  in  his  hands,  and  had  no  doubt  he 
could  raise  the  rest  through  his  friends  in  New  York ;  Ryerson 
expressed  his  surprise  that  Pratt  had  not  been  able  to  make  the 
loan  ;  he  recollects  that  a  majority  of  the  creditors  refused  to 
give  Pratt  the  refusal  of  the  lease  in  the  contract  drawn  up  and 
signed  by  the  creditors;  when  witness  called  upon  L'Homme- 
dieu,  he  wished  L'Hommedieu  to  show  him  a  statement 'of  what 
he  had  done  in  relation  to  settling  up  the  affairs  of  the  Ham- 
burgh company;  L'Hommedieu  said  they  would  have  to  call 
upon  the  creditors  ibr  an  assessment,  to  pay  up  some  debt8 
against  the  property  ;  witness  told  L'Hommedieu  he  wanted  him 
to  make  out  his  statement  and  bring  the  matter  to  a  close,  and 
witness  was  ready  and  willing  to  pay  his  share,  in  proportion  to 
the  debts  witness  held  against  the  company;  witness  does  not 
know  that  the  creditors  or  company  had  any  objections  against 
L'Hommedieu  and  Edsall's  taking  possession  of  the  property 
and  putting  it  into  operation. 

.Direct-examination  resumed. — Mr.  Haines,  as  counsel  for 
some  of  the  creditors,  objected  to  its  being  put  into  this  agree- 
ment that  Pratt  should  have  the  refusal  of  the  lease,  because 
he  said  it  would  show  an  agreement  between  the  creditors  and 
Pratt,  and  let  in  the  New  York  creditors  through  the  Court  of 
Chancery  ;  by  the  New  York  creditors,  was  generally  under- 


DECEMBER  TERM,  1845.  287 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

stood  those  who  resided  in  New  York,  some  of  whom  had  judg- 
ments and  some  had  not. 

Cross-examination  resumed. — He  thinks  there  were  other 
creditors  present  when  Mr.  Haines  gave  his  reasons,  but  cannot 
recollect  who;  thinks  it  was  to  the  creditors  generally,  the  rea- 
sons were  given  ;  thinks  some  of  the  creditors  there  stated  that 
they  preferred  giving  a  lease  to  Franklin  Holcouibe. 

Robert  Hamilton,  for  the  defendants. — Is  acquainted  with 
Pratt,  one  of  the  complainants,  and  has  been  since  about  the 
time  he  became  connected  with  the  Hamburgh  Co. ;  has  done 
business  as  an  attorney,  both  for  a,nd  against  the  said  company, 
and  became  familiar  with  their  affairs  while  they  were  carrying 
on  operations  at  Hamburgh  ;  after  Pratt  became  concerned  in 
the  Clinton  Co.,  he  acted  as  attorney  for  them,  and  became 
familiarly  acquainted  with  their  business  and  affairs;  at  the 
instance  of  Pratt  and  other  persons  interested  in  the  said  com- 
panies, he  entered  appearances  for  them  in  mostly  all  the  suits 
brought  against  them  respectively,  in  all  to  which  they  appear- 
ed, except  in  the  suits  brought  against  the  said  Hamburgh  Co. 
by  Joseph  E,  Edsall  and  John  Givans,  in  which  cases  he  was 
employed  for  the  plaintiffs ;  soon  after  Pratt  became  interested 
in  the  said  companies,  many  suits  were  brought  against  them, 
in  which  judgments  were  afterwards  obtained  and  executions 
issued  to  a  considerable  amount,  and  by  virtue  of  which  the 
sheriff  advertised  the  property  of  the  said  companies  in  the 
county  of  Sussex  to  be  sold  ;  the  property  of  the  said  Clinton 
Co.,  in  the  county  of  Sussex,  being  a  tract  called  the  mine  farm, 
which  was  adjourned  for  several  months — until  December  7th, 
1838 — at  the  instance  of  Pratt,  to  enable  the  said  company,  if 
possible,  to  meet  the  demands  against  them,  or  make  some 
arrangement ;  the  real  estate  of  the  Hamburgh  Co.  was  adver- 
tised to  be  sold  on  the  14th  of  December,  1838 ;  and  certain 
creditors  of  the  Hamburgh  Co.  (for  some  of  whom  he  acted  as 
attorney)  having  large  demands  against  said  company,  and 
believing  that  the  said  real  estate  of  the  said  companies  would 
be  sold  by  the  sheriff,  to  prevent  a  sacrifice  qf  the  property,  and 
to  endeavor  to  secure  their  claims  against  said  Hamburgh  Co., 
entered  into  an  agreement  among  themselves  to  buy  in  the  prop- 
erty of  the  said  company,  and  also  the  said  mine  tract  of  tne 


288  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

Clinton  Co.,  in  order  to  supply  the  furnace  on  the  said  Ham- 
burgh Co.  property  with  ore,  which  agreement  was  finally  con- 
cluded by  the  said  creditors,  and  reduced  to  writing  by  me,  at 
their  request,  and  signed  by  the  parties  thereto,  on  the  7th  of 
December,  1838,  a  copy  of  which  is  set  forth  in  the  complain- 
ant's bill ;  he  was  present  when  the  object  and  terms  of  the  said 
agreement  were  talked  over  and  agreed  upon,  and  signed  the 
agreement,  as  attorney  for  one  of  the  creditors;  and,  so  far  as 
his  knowledge  and  belief  extends,  the  said  agreement  was  not 
entered  into  in  pursuance  of  any  arrangement  or  agreement 
with  Pratt,  nor  had  he  any  part  or  interest  in  the  same,  either 
in  his  own  behalf  or  the  said  company's,  nor  was  there  any 
offer  or  engagement  on  the  part  of  David  Ryerson  to  procure 
a  loan ;  Ryerson  told  the  creditors — who  doubted  their  ability 
to  raise  money  to  effect  the  purchase  and  carry  on  the  business 
— that  he  would  aid  them  in  endeavoring  to  raise  money  for  that 
purpose;  the  creditors,  mostly,  were  averse  to  carrying  on  the 
furnace  themselves,  and  therefore  authorized  their  trustee,  in 
the  agreement,  to  lease  the  same,  and  to  make  sale  of  the  same, 
also,  if  possible,  for  an  amount  sufficient  to  secure  their  debts ; 
he  recollects  at  the  time,  that  Pratt  made  propositions  as  to  how 
he  would  lease  the  premises,  and  wanted  the  creditors,  in  case 
they  became  the  purchasers,  to  give  him  the  refusal  of  the  same, 
but  the  majority  of  the  creditors  expressly  refused  to  give  him 
the  refusal  of  the  lease,  and  were,  at  that  time,  opposed  to  his 
having  the  same,  believing,  as  they  said,  that  they  could  get 
the  premises  in  the  hands  of  a  more  efficient  man ;  after  the 
property  had  been  bought  in  by  the  trustee  of  the  creditors  some 
little  time,  Pratt  assured  them  that  if  they  would  give  him  a 
lease  of  the  premises  and  contract  for  sale,  for  $30,000,  he  had 
friends  in  New  York  who  would  assist  him,  and  he  would  be 
able  to  raise  the  money;  the  creditors,  not  knowing  what  better 
to  do  with  the  premises,  gave  him  the  lease  and  contract  for 
sale  set  forth  in  the  complainants'  bill ;  from  this  time  on,  until 
L'Hommedieu  and  Edsall  entered  into  possession  of  the  prem- 
ises, they  were  mostly  unused  and  unoccupied ;  in  January. 
1839,  part  of  the  dam  gave  way,  and  the  waters  carried  away 
part  of  the  flume,  and  otherwise  injured  the  premises;  the  cred- 
itors felt  alarmed  for  the  safety  of  the  property,  but  forebore  to 


DECEMBER  TERM,  1845.  289 

Hamburgh  Manufacturing  Co.  v.  Ednall. 

act  in  the  matter  until  May  following,  when  Pratt  was  confined 
in  Newark  jail ;  Daniel  Haines,  Esq.,  and  myself,  on  behalf  of 
the  creditors,  went  to  the  said  jail  and  saw  him  about  the  mid- 
dle of  May,  and  inquired  of  him  what  he  expected  to  do,  and 
whether  he  had  any  objections  to  the  creditors  taking  possession  ; 
and  Pralt  then  stated  to  us,  that  he  had  given  up  all  idea  of 
doing  anything  with  the  property,  and  that  he  relinquished  all 
claim  to  the  same,  and  said  that  the  creditors  might  have  taken 
possession  before  then,  for  he  had  relinquished  the  idea  of  doing 
anything  with  the  property  for  some  time  previous ;  in  June 
following,  none  of  the  other  creditors  being  desirous  or  willing 
to  carry  on  the  furnace,  L'Hommedieu  and  Edsall,  by  the  con- 
sent of  the  other  creditors,  as  I  have  always  understood  and 
believe,  commenced  putting  the  furnace  in  blast,  rebuilt  the 
dam,  repaired  the  premises,  and  have  been  in  possession  ever 
since;  since  they  have  been  in  possession,  I  have  been  present 
at  one  conversation  between  Pratt  and  Edsall,  in  which  Pratt 
was  negotiating  for  the  re-purchase  of  the  property. 

William  W.  Gillrnan,  for  the  complainants. — Is  acquainted 
with  Joseph  E.  Edsall,  and  has  seen  and  is  acquainted  with 
tlie  iron  works  called  the  Hamburgh  Manufacturing  Co.  Wit- 
ness was  there  in  the  fall  of  1839  ;  his  object  in  visiting  them 
was  to  purchase  the  same ;  and  he  had  an  interview  with  Ed- 
Ball  tit  that  time,  in  relation  to  purchasing  the  same,  and  had 
also  another  interview  with  him  in  the  city  of  New  York,  in 
August,  1841,  in  reference  to  the  same  object;  Edsall  called 
upon  the  witness  at  that  time;  witness  had  written  to  L'Hom- 
medieu  previous  to  that  time,  in  relation  to  the  situation  and 
condition  of  the  property,  and  he  presumes  that  it  was  in  con- 
sequence of  that  letter  that  Edsall  called  upon  him  ;  the  esti- 
mate Edsall  then  made  of  the  property  was  $30,000,  embra- 
cing the  ore-bed  ;  Edsall  valued  the  whole  personal  property  at 
§15,000. 

Cross  examined. — He  thinks  that  Edsall  over-valued  the  real 
estate,  and  it  was  his  impression  that  he  could  have  purchased 
it  for  $15,000;  witness  thought  Edsall  was  desirous  of  dis- 
posing of  the  property,  although  he  does  not  recollect  that  he 
so  stated  ;  Edsall  and  L'Hommedieu  stated  that  if  witness  re- 
ally wished  to  purchase  the  property,  they  were  willing  to  enter 


290  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  V.  Edsall. 

into  negotiations  with  him  respecting  it;  and  he  stated  in  a 
letter  to  L'Hommedieu,  that  such  was  his  intention  when  Ed- 
sall called  upon  him,  as  before  mentioned. 

Re-examined.- — Question  propounded  to  witness:  How  did 
you  get  the  impression  that  the  property  could  be  purchased  for 
n'fteen  thousand  dollars?  Answer — Witness  got  the  impression 
from  Mr.  Curtis  that  the  property  could  be  bought  for  $15,000, 
as  it  was  somewhat  involved,  provided  Pratt's  consent  could  be 
obtained,  which  witness  thought  might  be  done.  Question — 
What  did  you  understand  by  the  property  being  involved  ? 
Answer — Witness  says  that  he  understood  that  the  property  was 
in  the  possession  of  other  persons,  and  that  Pratt  had  a  claim 
upon  it,  and  unless  his  consent  was  obtained,  there  might  be  some 
trouble  about  it,  and  he  might  become  involved  in  a  lawsuit. 

Re-cross-examined. — Witness  offered  $12,000  for  the  pro- 
perty, although  he  thought  it  was  worth  much  more;  his  im- 
pression was,  that  it  was  worth  from  $25,000  to  $30,000  ;  one 
offer  only  was  made  by  witness;  he  thinks  that  they  offered  it 
to  him  for  $30,000,  and  for  no  less  sum  ;  witness  supposed  that 
they  had  an  asking  price  and  a  taking  price. 

Carlos  J.  Huutington,  for  the  complainants. — He  was  for- 
merly employed  by  the  Hamburgh  company  as  clerk  ;  he  thinks 
that  it  was  in  the  years  1837  and  1838  ;  and  he  resided  at 
Hamburgh  during  the  time  he  was  a  clerk  in  said  company, 
and  became  acquainted  with  L'Hommedieu  and  Edsall  during 
that  time;  he  was  in  Hamburgh  at  the  time  of  the  sale;  soon 
after  the  sale  he  had  conversations  with  L'Hommedieu  at  Ham- 
burgh, about  the  property  ;  in  the  conversations  referred  to, 
L'Hommedieu  stated  that  he  was  agent  for  the  company  and 
the  creditors,  and  that  he  had  bought  the  property  in  trust  for  fhe 
company  and  creditors  of  the  said  company,  and  that  one  of  the 
objects  of  the  sale  was  to  secure  a  loan  of  twenty  or  thirty 
thousand  dollars  ;  what  originated  the  conversation  was,  that 
witness  had  a  claim  of  about  $100  against  the  company,  and 
he  called  upon  L'Hommedieu  respecting  it,  who  stated  that  he 
knew  nothing  about  it,  that  he  was  trustee  for  the  company  and 
the  creditors  only. 

Cross-examined. — Witness  is  positive  that  L'Hommedieu 
stated  that  he  was  acting  as  trustee  for  the  company  and  the 


DECEMBER  TERM,  1845.  291 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

creditors  of  the  company,  as  the  property,  he  said,  was  to  go 
uack  to  the  company,  if  the  arrangement  between  it  and  the 
creditors  thereof  was  carried  out ;  witness  cannot  say  what  that 
arrangement  was;  he  understood  that  Pratt  had, or  was  to  have 
a  lease  of  it;  L'Hommedieu  stated  that  it  was  not  their  object 
to  take  advantage  of  the  company,  but  merely  to  secure  the 
claims  of  its  creditors  ;  witness  understood  from  this  conversa- 
tion, that  the  company  was  to  have  the  property  back,  if  they 
complied  with  certain  conditions;  the  loan  referred  to  was 
twenty  or  thirty  thousand  dollars,  which  was  to  have  been  ob- 
tained from  David  Ryerson ;  the  loan,  witness  supposed,  was  to 
pay  the  debts  of  the  company,  though  he  does  not  know  that 
L'Hommedieu  so  stated  it. 

David  Ryerson,  for  the  defendants. — I  recollect  being  at 
Hamburgh,  at  one  time,  when  the  property  was  advertised  for 
sale,  and  several  of  the  creditors  of  the  Hamburgh  Co.  were 
present;  it  was  the  day  before  the  mine  property  was  sold  at 
Newton  ;  I  went  to  Hamburgh  to  attend  the  sale;  the  sale  did 
not  take  place  that  day,  but  was  adjourned  over  until  the  next 
day,  at  Newton  ;  my  object  in  attending  the  sale  was  to  aid,  if 
I  could,  in  any  way,  the  creditors,  to  get  them  secured  ;  sev- 
eral of  the  creditors  about  Hamburgh  were  particular  friends  of 
mine;  I  supposed  their  claims  were  in  danger;  I  understood 
that  some  arrangements  were  made  amongst  the  creditors  for 
the  purpose  of  protecting  themselves  from  loss  ;  and  1  under- 
stood that  L'Hommedieu  was  to  purchase  dm  property  in  trust, 
for  the  benefit  of  the  creditors;  and  I  understood,  or  was  under 
the  impression  that  Pratt  was  also  consulted  on  the  occasion, 
and  understood  the  arrangements  that  were  made ;  he  was 
there,  and  I  saw  him  conversing  with  Edsall,  and,  I  supposed, 
about  the  arrangements  ;  I  understood  the  adjournment  was 
made  for  the  purpose  of  enabling  the  creditors  to  perfect  their 
arrangements;  1  know  that  the  creditors  talked  of  making  a 
loan  for  the  purpose  of  paying  off  the  debts  of  the  company, 
and  I  told  them  that  I  would  try  and  assist  them  in  making  the 
loan  ;  and  I  think  I  went  so  far  as  to  tell  some  of  them  that  I 
thought  a  loan  might  be  obtained  ;  I  am  not  certain,  now,  as  to 
the  amount  that  was  required  to  be  raised  by  that  loan — I  think 
somewhere  about  $30,000;  the  loan  was  wanted  for  the  pur- 


292  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

pose  of  paying  debts  or  demands  against  the  property  ;  when 
I  made  the  proposition,  or  suggested  the  probability  of  their  ob- 
taining a  loan,  I  told  the  creditors  there  that  I  supposed  it 
would  be  absolutely  necessary  for  them  to  pledge  their  own  per- 
sonal responsibility  for  the  amount  that  would  be  required,  and 
that  they  would  have  to  make  satisfactory  security  to  the  person 
who  should  loan  the  money;  I  think  I  never  stated  in  the  pres- 
ence of  Edsall  or  Pratt,  or  of  any  of  the  creditors,  that  I  would 
procure  the  loan  for  them,  or  that  the  money  should  be  advanced 
as  soon  as  the  property  was  sold  ;  I  don't  know  that  I  would 
have  advanced  that  amount  upon  the  property  if  I  had  had  it; 
but  I  had  not  any  such  amount  to  advance,  if  I  had  had  a  desire 
to  do  it ;  I  never  made  that  as  a  condition,  if  the  property  should 
be  sold  ;  I'think  I  never  did  agree  to  advance  the  money  to  the 
purchaser  of  the  property,  to  be  secured  by  a  mortgage  upon 
the  same,  upon  the  condition  that  the  creditors  would  execute 
an  agreement  to  be  responsible  to  the  mortgagee  for  any  loss 
that  might  be  sustained  on  account  of  the  loan,  in  proportion  to 
their  several  claims;  I  am  not  acquainted  with  Aaron  B.  Nones, 
but  I  think  there  was  a  person  of  that  name  at  Hamburgh,  at 
the  time  spoken  of,  and  that  I  saw  the  same  gentleman  at  New- 
ton the  next  day,  at  the  sale;  I  have  no  recollection  of  having 
had  any  conversation  with  him  at  any  time  about  this  business; 
to  my  recollection  I  never  told  Aaron  B.  Nones  that  I  was  to 
loan,  or  was  to  procure  a  loan  of  $30,000;  I  think  I  never  told 
him  so;  I  am  very. confident  I  never  could  have  told  him  that  I 
was  going  to  loan  the  $30,000  myself,  for  I  had  no  such  sum 
at  rny  command  ;  I  have  no  recollection  of  ever  having  any  con- 
versation with  Nones  upon  the  subject;  I  certainly  never  told 
him  that  I  would  make  such  loan  myself,  for  I  had  no  such 
sum  to  loan  ;  I  think  I  stated  publicly,  in  the  presence  of  the 
creditors  and  others,  and  it  is  probable  that  Nones  was  present, 
that  such  a  loan  might  possibly  be  procured,  and  that  I  would 
endeavor  to  aid  them  in  procuring  such  a  loan  ;  I  had  no  knowl- 
edge, at  that  time,  of  any  money  that  could  be  got  for  that 
purpose;  I  did,  afterwards,  at  the  request  of  the  creditors,  make 
some  efforts  to  get  this  loan ;  I  went  to  New  York,  and  spent 
some  time  there  for  the  purpose  of  ascertaining  whether  the 
money  could  be  had  or  not;  upon  reflection,  I  think,  when  the 


DECEMBER  TERM,  1845.  293 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

subject  of  procuring  the  loan  was  mentioned,  it  was  understood 
that  Pratt  was  to  receive  a  portion  of  it,  for  the  purpose  of  put- 
ting the  furnace  in  blast ;  I  think  this  was  the  understanding 
between  the  creditors  and  Pratt,  and  that  some  of  the  principal 
creditors  so  informed  me;  the  agreement  the  creditors  had 
upon  the  subject  was  reduced  to  writing;  I  am  not  certain  that 
I  saw  the  writing,  but  think  I  did;  and  that  the  adjournment 
was  made  for  the  purpose  of  getting  time  to  prepare  the  writing; 
I  did  afterwards,  myself,  loan  to  L'Hommedieu  $3000,  to  pay 
on  account  of  the  purchase  of  the  property  made  by  him. 

Cross-examined. — In  reference  to  this  business,  the  matters 
are  not  strongly  impressed  upon  my  memory,  for,  at  the  time, 
I  did  not  suppose  I  should  be  called  to  testify  about  it,  and  I 
find  that  my  memory  is  not  now  as  good  as  it  formerly  was ;  at 
the  time  spoken  of,  there  appeared  to  be  a  perfect  understanding 
between  the  creditors  and  Pratt,  but  as  to  particulars  I  cannot 
speak  ;  I  think,  however,  that  it  was  understood  that  a  part  of 
the  money  to  be  procured  was  to  go  to  Pratt,  or  some  other  per- 
son, for  the  purpose  of  carrying  on  the  works,  and  by  tha*; 
means  enable  them  to  pay  the  debts  due  from  the  company ; 
my  impression  is,  that  part  of  the  money  to  be  loaned  was  to 
be  applied  for  the  purpose  of  carrying  on  the  works,  and  it  was 
the  insistraent  of  Pratt  that  he  was  to  have  the  management  of 
it;  and  after  some  conversation  apart,  between  Edsall  and  Pratt, 
I  think  Pratt  insisted  or  desired  that  there  should  be  some  mem- 
orandum of  the  agreement  between  them  made,  and  that  it 
should  not  rest  in  mere  parol ;  to  which  I  think  Edsall  replied 
that  he  would  have  to  abide  by  it  as  it  then  was,  or  something 
to  that  effect;  I  do  not  recollect  that  any  reason  was  given  by 
Edsall  at  the  time  ;  at  the  time  of  the  sale  I  understood  that 
L'Hommedieu  purchased  the  property  for  the  benefit  of  the 
creditors,  and  was  to  hold  it  in  trust  for  them  until  the  debts  and 
claims  against  the  company  were  liquidated  and  settled ;  I  know 
nothing  of  any  reversionary  interest  in  Pratt,  or  any  one  else  ; 
I  understood  that  there  was  a  written  agreement  between 
L'Hommedieu  and  the  creditors  upon  this  subject,  but  whether 
Pratt  is  a  party  to  it  or  not  I  do  not  know ;  I  do  not  know  or 
recollect  of  any  reason  being  given  at  that  time  why  Pratt  was 
uot  made  a  party  to  that  agreement ;  if  any  was  stated,  I  do 


294  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Eclsall. 

not  recollect  it;  I  believe  that  the  conversation  spoken  of  by 
me  above,  as  having  taken  place  between  Etlsall  and  Pratt,  was 
before  anything  was  said  in  reference  to  getting  up  the  loan  or 
carrying  on  the  works. 

In  chief. — I  believe  that  a  principal  part  of  the  creditors  were 
without  any  liens  upon  the  property,  and  would  have  been  in 
danger  of  losing  their  debts,  upon  a  sale  of  the  property  being 
made;  the  creditors  thought  it  a  matter  of  importance  to  secure 
the  mine  property  as  an  appendage  to  the  furnace,  and  to  be 
connected  therewith  ;  it  was  my  impression  that  it  would  add 
much  to  the  value  of  the  furnace  property,  for  the  creditors  to 
secure  the  mine  property. 

John  Black,  for  the  complainants. — I  have  worked  for  Ed- 
sail  and  L'Horamedieu  since  they  had  the  Hamburgh  furnace, 
about  nine  months  and  a  half;  I  had  charge  of  the  blast  furnace ; 
I  had  a  conversation  with  L'Hommedieu  before  I  began  to  work 
there  for  him  and  Edsall  ;  I  carried  my  claim  in  to  L'Homme- 
dieu, against  the  Hamburgh  company,  to  know  when  he  could 
give  me  some  money  upon  it;  I  cannot  say  in  how  long  a  time 
he  said  it  would  be  before  he  could  give  me  some  money  upon 
it ;  it  was  but  a  short  time  that  he  took  ;  he  said  he  expected  to 
receive  some  money  from  Mr.  Ryerson  ;  I  called  three  or  four 
times,  but  did  not  get  any  money  from  him  ;  at  one  time  my 
family  was  a  good  ways  from  here,  and  I  called  on  him  for 
some,  as  I  calculated  to  go  home,  and  he  said  he  had  not  raised 
the  money  on  the  Hamburgh  property  that  he  expected.;  I 
asked  him  if  Ryerson  did  not  agree,  or  was  not  to  advance 
money  to  pay  on  the  debt,  or  the  debts;  I  did  not  understand 
whether  all  or  a  part  of  the  debts  were  to  be  paid  ;  he  said  that 
was  the  understanding,  that  Ryerson  was  to  raise  some  money, 
or  advance  some  money,  but  had  not  done  it ;  I  then  asked 
him  if  he  had  not  the  Hamburgh  property  in  hand  for  the  pur- 
pose of  raising  money  on  it;  he  said  he  held  it  as  trustee  for 
1'ratt  and  the  creditors;  he  spoke  of  its  being  hard  times,  and 
wished  to  know  from  me  if  I  could  tell  him  where  he  could  find 
a  man  that  would  loan  money  on  the  property  ;  I  was  at  Ham- 
burgh once  when  Ryersou  was  there,  and  heard  him  say  he 
would  advance  money  to  assist  in  paying  the  debts;  there 
was  a  meeting  of  the  creditors  of  the  company,  but  cannot  say 


DECEMBER  TERM,  1845.  295 

Hamburgh  Manufacturing  Co.  v.  EciUall. 

whether  it  was  the  day  the  property  was  advertised  to  be  sold 
or  not ;  llyerson  said  he  would  advance  the  money,  but  I  think 
lie  said  nothing  to  bind  him  ;  I  think  I  have  had  conversations 
with  some  of  the  creditors,  and  was  told  by  the  person,  who- 
ever it  was,  that  they  had  no  more  right  there  than  he  or  I  hud, 
or  any  other  person  ;  I  mean  by  they,  L'Hommedieu  and  Ed- 
sail  ;  I  do  not  know  that  it  was  said  by  the  person  in  what 
manner  or  way  they  held  it. 

Cross-examined. — Does  not  know  how  far  he  was,  or  how 
ir  he  was  not,  a  party  to  the  agreement  with  the  creditors  to 
purchase  the  property  ;  does  not  think  he  signed  the  agreement; 
his  claim  at  that  time  against  the  company  was  about  $1000  ; 
nothing  lias  been  paid  to  him  upon  it  j  he  cannot  say  that  he 
is  certain  his  claim  will  be  in  a  better  situation  if  Pratt  succeeds 
in  this  suit,  than  it  is  at  present ;  he  has  not  seen  Pratt  very 
frequently  since  this  suit  has  been  commenced,  but  when  he 
has  seen  him  they  have  spoken  about  the  Hamburgh  affairs, 
and  Pratt  has  spoken  about  his  rights  or  claims  to  the  property, 
and  witness  thinks  he  has  told  him  what  he  knew  about  it,  and 
what  he  could  testify  to ;  Pratt  has  not  told  witness  that  if  he 
succeeds  in  this  suit  witness  would  get  his  claim,  or  a  part  of  it, 
secured,  or  anything  like  it,  that  he  knows  of,  and  witness  has 
no  assurance  or  expectation,  from  anything  that  has  been  said, 
that  he  should  get  his  claim  secured,  any  more  than  he  ever 
had  ;  witness  does  not  remember  that  he  has  ever  told  any 
person,  since  this  suit  was  commenced,  that  he  expected  to  get 
his  pay,  or  anything  to  that  effect;  he  has  said,  and  always 
has  said,  that  he  had  hopes  some  day  that  he  would  get  his 
pay,  but  he  did  not  know,  and  does  not  know  now,  that  he  shall 
ever  get  the  first  cent ;  the  conversation  witness  had  with 
L'Hommedieu,  when  he  called  for  his  pay,  was,  he  thinks,  in 
May,  after  the  sale  of  the  property  ;  he  did  not  explain  to  wit- 
ness how  he  held  the  property  for  Pratt ;  he  only  said  he  held 
it  as  trustee;  before  this,  he  told  witness  that  Pratt  was  going 
to  put  the  furnace  in  operation  ;  there  was  some  dispute  be- 
tween Edsall  and  witness  three  or  four  months  before  witness 
left;  witness  felt  himself  abused,  and  he  supposes  Edsall  felt 
himself  abused.  Question — Was  not  Edsall  the  cause,  and  did 
he  not  occasion  you  to  quit  the  employment  at  the  time  you  did? 


296  CASES  IN  CHANCERY. 

Hamburgh  Mauufacturing  Co.  v.  Edsall. 

Answer — He  was  not  wholly,  but  in  part,  and  myself  also,  in 
making  the  arrangement,  so  that  we  were  both  satisfied.  Ques- 
tion— Was  there  not  a  dispute  and  ill-feeling  between  you  after 
you  quit;  in  your  settlement,  or  other  matters?  Answer — I  do 
not  think  there  was  any  dispute  in  regard  to  the  settlement,  but 
there  was  about  some  other  matters  after  I  came  back  from  the 
west.  Question — Have  you  not  been  on  bad  terms  ever  since? 
Answer — I  have  no  bad  or  willful  feelings  against  Col.  Edsall  ; 
I  wish  him  no  wrong,  in  any  shape,  that  I  know  of.  Question 
— Have  you  since  then  been  on  good  and  friendly  terms?  An- 
swer— We  have  not  met  often  since,  and  sometimes  we  spoke, 
and  sometimes  we  did  not,  but  spoke  as  often  as  we  did  before 
we  had  any  difficulty. 

Robert  A,  Linn,  for  the  defendants. — Was  acquainted  with 
the  Hamburgh  Co.,  and  transacted  business  with  them  when 
they  were  engaged  in  carrying  on  the  works  here.  [This  wit- 
ness is  objected  to  by  the  complainants,  as  being  a  party  to 
this  suit.]  At  a  meeting  had  by  their  creditors,  at  one  time, 
witness  thinks  it  was  estimated  that  the  company  owed  to  the 
amount  of  $30,000  ;  this  was  some  time  before  the  sale  of 
their  property — some  three  or  four  months,  perhaps ;  there 
were  several  adjournments  after  the  meeting,  and  before  the 
sales,  witness  thinks  ;  when  the  creditors  met,  they  concluded 
if  they  could  not  get  the  benefit  of  the  mine  property,  that  the 
property  of  the  company  would  not  be  sufficient  to  secure  the 
debts,  and,  therefore,  they  appointed  L'Hommedieu  as  their 
agent,  to  buy  the  mine  property  ;  there  was  an  agreement,  as 
witness  understood,  finally  concluded  amongst  the  creditors  of 
the  Hamburgh  Co.,  that  L'Hommedieu  should  purchase  the 
mine  property  for  their  use,  and  also  the  Hamburgh  property; 
witness  was  one  of  the  creditors,  and  one  of  the  parties  to  that 
agreement;  the  object  of  purchasing  in  that  property  was  to 
have  the  control  of  it,  so  as  to  save  their  debts ;  the  sales  of 
the  property  were  adjourned  several  times,  and,  as  witness  un- 
derstood, at  the  request  of  Pratt,  who  it  was  said  had  proposed 
or  suggested  that  lie  could  procure  means  that  would  save  the 
necessity  of  the  sale  ;  witness  does  not  know  that  he  heard 
Pratt  say  this,  but,  at  one  of  the  adjournments,  he  heard  Pratt 
Bay  that  he  had  $17,000  in  escrow,  which  would  be  forthcom- 


I  DECEMBER  TERM,  1845.  297 

Hamburgh  Manufacturing  po.  v.  Edsall. 

ing  in  a  little  time;  witness  did  not  exactly  understand  what 
it  meant,  as  he  had  never  heard  the  term  used  before ;  he  was 
present  at  the  sale  made  at  Newton ;  the  property  was  purchas- 
ed by  L'Hommedieu,  for  the  benefit  of  the  creditors;  he  did  not 
understand  that  it  was  for  the  benefit  of  Pratt ;  witness  under- 
stood at  the  time,  from  some  persons  there,  that  if  the  property 
was  purchased  in  for  the  use  of  the  creditors,  and  the  title  could 
be  made  secure,  David  Ryerson  had  said  he  would  aid  and  as- 
sist, or  do  what  he  could  to  assist  them  in  procuring  a  loan  for 
the  purpose;  witness  thinks  he  did  not  hear  Ryerson  say  any- 
thing himself  on  the  subject;  the  loan,  as  he  understood,  was 
to  be  for  the  amount  of  the  debts,  which  was  about  $30,000; 
witness  does  not  kuow  that  he  heard  Ryerson  say  that  the  per- 
sonal responsibility  of  the  creditors  would  be  required  to  obtain 
the  loan,  but  that  was  said  by  somebody;  witness  made  up 
his  mind  that  he  would  not  give  his  joint  responsibility,  but' 
would  give  his  own  responsibility  for  the  amount  he  might  re- 
ceive :  the  object  of  procuring  the  loan  was,  as  he  understood 
it,  to  pay  the  claims  of  the  creditors ;  he  thinks  he  understood 
there  was  a  lease  of  the  property  made  to  Pratt  by  L'Homme- 
dieu, and  a  contract  for  a  sale  to  him  of  the  premises;  witness 
thiu-ks  he  saw  the  lease ;  he  thinks  he  was  present  when  it  was 
made,  and  there  was  some  difficulty  about  it;  he  understood  that 
Pratt  wanted  more  of  the  proceeds  resulting  from  the  blast  or 
the  works  to  enable  him  to  carry  them  on,  and  less  of  them  to 
be  applied  towards  liquidating  the  debts;  witness  recollects  at 
one  time  it  was  proposed  by  some  one,  that  a  lease  should  be- 
made  of  the  property  to  Joseph  H.  Pettis,  or  to  Franklin  Hoi- 
combe,  but  to  this  Pratt  objected,  stating  that  they  were  his 
hirelings,  and  he  would  not  consent  to  it ;  witness  does  not 
know  who  were  Pratt's  agents  after  he  took  the  lease  ;  there 
were  several  persons  there  who  said  they  were  his  agents ;  it 
must  have  been  several  mouths  after  the  lease  was  made  to 
Pratt,  before  L'Homraedieu  and  Edsall  took  possession  of  the 
works;  during  that  time  they  were  idle;  while  the  works 
were  thus  idle,  Edsall  proposed  to  witness  that  as  we  were 
two  of  the  largest  creditors,  we  should  put  the  works  in  ope- 
ration, but  witness  declined  having  anything  to  do  with 
it,  as  he  considered  it  a  losing  business ;  our  claims  were  more 
VOL.  i.  T 


298  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

in    amount  than  one-half  of  the  whole   debts   due   from    the 
company. 

William  Simpson,  Jr.,  for  the  defendants. — The  Ham- 
burgh company  were  indebted  to  him  at  one  time;  he  assigned 
his  claim  against  the  company  to  L'Hommedieu;  sometime 
before  the  sale,  the  creditors  began  to  think  they  would  not  get 
their  money;  the  creditors,  before  the  sale,  had  several  meet- 
ings to  concert  some  measures  by  which  to  secure  their  debts; 
there  was  finally  an  arrangement  made  by  them  to  buy  in  the 
property  at  the  sheriff's  sale;  the  arrangement  made  was  to  buy 
in  the  mine  property  with  the  furnace  property;  witness  thinks 
the  talk  was  that  it  was  deemed  of  importance  to  have  that 
bought  in  with  the  other  to  secure  their  money,  and  they  ap- 
pointed L'Hommedieu  as  their  trustee,  to  buy  in  the  property 
for  them  ;  witness  was  at  Hamburgh  the  day  before  the  prop- 
erty was  sold  at  Newton  and  he  was  also  at  Newton  the  next 
day,  when  the  property  was  sold  ;  L'Hommedieu  was  appoint- 
ed trustee  to  purchase  the  property  solely  for  the  creditors ;  wit- 
ness never  understood  that  Pratt  was  to  have  any  interest  in 
the  purchase,  or  any  other  person  except  the  creditors,  to  his 
knowing;  the  understanding  was,  at  the  time,  that  if  the 
creditors  purchased  in  the  property,  they  would  endeavor  to 
raise  money  upon  the  property  to  pay  the  debts  ;  witness  recol- 
lects that  David  Ryerson  was  at  Hamburgh  the  day  before 
the  sale,  and  said  that  if  the  creditors  would  purchase  in  the 
property,  he  would  endeavor  to  assist  them  in  raising  the  money, 
and  he  spoke  of  one  or  two  places  where  he  thought  the 
money  might  be  obtained;  they,  the  creditors,  failed  to  raise 
the  money  ;  Ryerson  said  that  it  would  be  necessary  for  the 
creditors  to  give  their  own  responsibility  to  enable  them  to  raise 
the  money  ;  after  L'Hommedieu  purchased  the  property,  wit- 
ness recollects  something  about  a  lease  and  contract  being  made 
out  from  him  to  Pratt;  he,  as  one  of  the  creditors,  was  consult- 
ed about  the  terms  of  it;  there  were  a  number  of  creditors  to- 
gether on  that  occasion,  and  consulted  upon  the  subject;  some- 
thing was  said  about  the  prices  of  the  wood  and  ore  that  he  was 
to  pay,  and  there  was  a  difficulty  also  about  some  money  that 
Pratt  wanted  the  creditors  to  raise  for  him,  to  help  him  along 
with  the  works  ;  there  was  also  a  difficulty  about  some  money  re- 


DECEMBER  TERM,  1845.  299 

Hamburgh  Manufacturing  Co.  y.  Edsall. 

quired  by  Pratt  to  be  raised  by  the  creditors  for  him,  to  aid  him 
in  putting  the  works  in  operation  ;  at  first  the  creditors  refused 
to  raise  any  money  for  him,  but  afterwards  we  agreed  to  ad- 
vance some,  but  a  difficulty  then  arose  as  to  the  way  in  which 
it  should  be  paid  in;  the  creditors  were  willing  only  to  pay  in 
in  small  suras,  as  he  went  along  with  the  works,  and  not  to 
pay  i"  the  whole  amount  required  by  him;  it  was  finally  set- 
tled, however,  and  a  lease,  witness  thinks,  was  made  to  him 
by  L'Hommedieu  ;  there  was  difficulty,  also,  he  thinks,  about 
the  amount  of  the  yearly  payments  that  were  to  be  made  by 
Pratt,  but  he  cannot  state  what  the  difficulty  was,  exactly ; 
there  were  a  good  many  of  the  creditors  then  opposed  to  driv- 
ing on  the  works  by  themselves;  witness  thinks  after  Pratt 
got  the  lease,  there  were  some  stones  drawn  there  by  some  of 
his  hands,  for  the  purpose  of  repairs,  but  nothing  more  was 
done,  and  the  property  lay  idle  through  the  course  of  that  win- 
ter and  spring,  until  L'Homraedieu  and  Edsall  took  the  posses- 
sion. 

Cross-examination. — L'Hommedieu  paid  witness  fifty  cents 
on  the  dollar,  on  the  amount  of  his  claim;  he  gave  his  note  for 
it;  witness  does  not  recollect  whether  there  was  anything 
said  about  a  lease  to  Pratt  on  the  day  before  the  sale;  he  thinks 
there  was  something  said  about  it  at  Newton,  on  the  day  of  the 
sale ;  it  was  understood,  at  that  time,  that  Pratt  was  to  have  a 
lease  of  the  property;  it  was  so  talked  among  the  creditors; 
witness  does  not  recollect  of  any  reason  being  given,  at  that 
time,  why  the  agreement  was  not  then  executed ;  he  do?s  not 
recollect  that  Pratt  was  desirous  this  should  be  done  before  the 
sale ;  he  does  not  know  that  he  was,  or  was  not ;  witness  does 
not  think  that  he  remembers  all  that  took  place  among  the  cred- 
itors, at  that  time,  nor  the  one-half  of  it;  he  thinks  that  Mr. 
Ryerson  spoke,  also,  at  Newton,  of  assisting  to  raise  the  money; 
he  does  not  know  but  what  it  was  talked,  at  Newton,  about  rais- 
ing money  for  Pratt,  to  enable  him  to  carry  on  the  works;  he 
thinks  all  these  arrangements  were  talked  over  at  Newton,  on 
the  day  of  the  sale;  he  understood  the  object  of  raising  that  loan 
was  to  assist  Pratt,  so  as  to  enable  him  to  put  the  works  in 
order;  he  understood  that  the  creditors  were  to  assist  in  raising 
tor  Pratt  the  money  required  to  put  the  works  in  operation ; 


300  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

each  one  was  to  pay  his  proportion;  lie  thinks  $1500  was  the 
sura  that  Pratt  wanted  ;  the  money  spoken  of  to  be  raised  by 
the  assistance  of  Ryerson,  was  to  go  to  pay  off  the  claims  of 
the  creditors,  as  he  understood;  that,  also,  was  talked  of  at 
Newton ;  it  was  understood,  if  this  loan  was  obtained,  that 
whatever  the  property  sold  for,  less  than  the  amount  borrowed, 
the  creditors  were  to  make  up  the  deficiency ;  the  property  was 
to  be  mortgaged  for  the  amount  borrowed,  and  if  it  was  not 

O     O  r 

worth  it,  we  were  to  make  up  the  difference. 

In  chief. — Witness  meant,  by  the  loan  to  assist  Pratt,  the 
money  that  was  to  be  advanced  to  him  by  the  creditors,  as  men- 
tioned in  the  lease ;  the  lease  and  contract,  as  made  out  to  and 
with  Pratt,  are  in  conformity  with  the  arrangement  and  under- 
standing made  and  had  at  Newton,  and  was  made  out  shortly 
after  the  sale. 

Cross-examination. — Witness  saw  the  lease  after  it  was  drawn^ 
and  he  thinks  it  was  in  conformity  with  the  agreement  made 
with  the  creditors;  he  does  not  know  that  he  ever  saw  any  other 
contract  that  was  made  with  Pratt,  nor  does  he  know  of  any 
other  contract  being  made  with  him,  except  this  lease;  nor  does 
he  know  that  he  ever  heard  of  any  other;  he  saw  the  lease,  on 
the  day  of  the  sale,  at  Newton,  that  was  drawn  there;  that 
lease,  as  he  understood,  contained  the  agreement  between  the 
creditors  and  Pratt. 

In  chief. — After  the  sale,  witness  thinks  it  was,  he  met  with 
some  of  the  creditors,  at  Mr.  Haiues'  office  in  Hamburgh,  on  the 
bubject  of  making  out  the  lease  to  Pratt;  it  appears  to  him  that 
Mr.  Haiues  read  the  lease  over  then ;  witness  almost  forgets 
about  it ;  he  supposed  that  the  lease  and  contract  spoken  of  was 
all  one  and  the  same  thing;  he  may  be  mistaken  about  hear- 
ing the  lease  read  over  at  Newton ;  it  might  have  been  the  con- 
tract that  he  heard  read  there.  [The  paper  marked  Exhibit  K 
2  on  the  part  of  the  defendants,  being  shown  to  the  witness, 
and  parts  of  it  read  over  to  him,  he  says] — It  sounds  like  the 
same  that  was  read  over  in  Mr.  Haines'  office,  at  the  time  men- 
tioned, when  the  creditors  met  there;  he  is  now  satisfied  that 
the  lease  was  made  out  at  Mr.  Haines'  office,  after  the  sale,  and 
that  it  was  the  contract  that  he  heard  read  over  at  Newton,  and 
not  the  lease. 


DECEMBER  TERM,  1815.  301 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

John  Vandegrift',  for  the  complainants. — He  was  present  at 
a  meeting  of  the  creditors  of  the  Hamburgh  company,  at  Ham- 
burgh, a  day  or  two  before  the  property  was  sold  ;  he  recollects 
eeeing  Mr.  David  Ryerson  there ;  there  was  a  conversation  at 
the  time  among  the  creditors  that  Ryerson  would,  or  was  about 
to  raise  a  loan,  to  assist  Pratt ;  he  understood  it  so ;  the  way 
witness  understood  it,  and  the  way  it  was  talked  there,  Ry- 
erson was  about  to  raise  a  sum  of  money  for  Pratt,  and  it 
was  to  be  paid,  so  much  of  it  to  the  creditors  of  Pratt,  but  he 
does  not  recollect  the  amount,  and  Ryerson  was  to  advance 
•  some  of  it  to  Pratt,  to  enable  him  to  go  on  with  the  works  and 
keep  the  furnace  in  operation  ;  he  understood  that  the  real  es- 
tate was  to  be  set  up  and  sold,  but  Pratt  was  to  have  it  restored 
back  after  the  sale,  or  something  to  that  effect ;  he  cannot  re- 
collect distinctly  the  express  terms;  he  heard  it  talked  of  about 
the  door,  among  the  creditors  ;  he  did  not  understand  who  was 
to  buy  the  property ;  he  was  at  that  time  a  creditor  of  the  com- 
pany to  a  considerable  amount ;  he  has  no  interest  in  it  now ; 
at  that  time  witness  was  there  for  the  purpose  of  looking  after 
his  rights ;  he  was  not  at  Newton  the  day  of  the  sale  of  the 
property. 

Cross-examined. — The  company  was  indebted  to  the  firm  of 
which  witness  was  a  partner,  but  not  to  him  individually  ; 
the  amount  of  the  indebtedness  was  considerable ;  he  thinks 
the  debt  due  the  firm  is  not  paid,  but  he  has  assigned  away  his 
interest  to  William  Edsall ;  witness  owed  William  Edsall,  and 
transferred  his  claim  to  him,  that  is,  his  share  of  the  claim,  for 
the  amount. 

In  chief. — Witness  understood  that  the  property  was  to  be 
sold  at  Newton  on  the  day  to  which  the  adjournment  was  made, 
and  that  Pratt  was  to  go  on  with  the  works. 

Samuel  Truex,  for  the  complainants. — Was  at  Hamburgh 
at  the  time  the  property  was  advertised  for  sale ;  David  Ryer- 
son was  there ;  there  was  a  meeting  of  the  creditors  of  the 
Hamburtrh  company  there  that  day;  the  understanding  of 
witness  was,  at  the  time,  that  Ryerson  was  to  raise,  he  thinks 
it  was  $30,000,  for  the  purpose  of  paying  the  debts  of  the  com- 
pany ;  L'Hommedieu  was  to  purchase  as  trustee,  between  the 
creditors  and  the  company  ;  that  was  the  general  report  among 


302  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

the  creditors  ;  Robert  Lewis,  witness  thinks,  was  the  one  who 
told  him  what  the  arrangement  was  at  the  time;  his  under- 
standing at  the  time  was,  if  Ryerson  raised  the  money,  and  the 
property  was  sold,  the  company  was  to  carry  the  works  on. 

Cross-examined. — Witness  had  been,  shortly  before,  em- 
ployed by  the  company  as  clerk  for  them,  and  as  an  agent  for 
them,  so  far  that  he  sold  goods  for  them  and  had  a  superintend- 
ence over  their  works;  Mr.  Howard  was  the  principal  agent; 
witness  thinks  he  commenced  there  about  the  12th  of  January, 
1838,  and  continued  until  about  the  12(h  of  August  then  next  ; 
he  made  contracts  of  purchases  for  them,  and  managed  their 
business  here;  the  creditors  of  the  company  about  then  man- 
ifested a  good  deal  of  anxiety  about  the  safety  of  their  claims  ; 
a  good  many  of  them  considered  their  money  very  doubtful, 
and  he  heard  a  number  of  them  so  express  themselves  ;  after 
Pratt  had  the  lease,  witness  thinks  he  heard  it  from  some  quar- 
ter, but  does  not  recollect  that  he  heard  it  from  Pratt,  that  he, 
Pratt,  was  to  get  some  man  in  New  York  to  purchase  the  pro- 
perty, and  witness  understood  that  Pratt  and  L'Hommedieu  had 
gone  to  New  York  for  that  purpose ;  witness  thinks  the  balance 
that  was  coming  to  him  from  the  company  was  about  forty-four 
dollars;  one  day  lie  saw  L  Hommedieu  at  the  store,  who  off- 
ered fifty  cents  on  the  dollar  for  the  claim  ;  witness  told  him  he 
would  take  it ;  he  then  said  he  had  not  the  money  by  him,  but 
would  pay  in  a  short  time ;  witness  never  made  a  transfer  of 
the  claim  to  L'Hommedieu  ;  he  thinks  he  has  heard  it  talked 
of  among  the  small  creditors  of  the  company,  that  they  were 
afraid  of  losing  their  claims  entirely,  by  reason  of  the  many 
larger  claims,  which,  he  understood,  many  of  them,  were  liens 
by  mortgages,  and  therefore  they  were  anxious  to  have  the  pro- 
perty purchased  in,  for  the  common  benefit  of  all ;  his  under- 
Btanding  was,  that  the  smaller  creditors  were  fearful  of  losing 
their  claims,  if  a  sale  of  the  property  was  made  without  some 
such  arrangement. 

Joseph  Sharp,  for  the  complainants. — Was  at  Hamburgh  at 
the  time  there  was  a  meeting  of  the  creditors  of  the  Hamburgh 
company,  when  the  property  was  under  advertisement  for  sale, 
and  was  also  present  when  some  part  of  it  was  sold  ;  David 
Ityerson  was  there  the  fir«t  day,  but  not  the  second,  an  witness 


DECEMBER  TERM,  1845.  303 

Hamburgh  Manufacturing  Co.  v.  Exfcall. 

recollects ;  witness  had  a  mortgage  at  that  time  on  a  part  of 
the  property;  there  was  a  good  deal  of  talk  among  the  credi- 
tors at  the  time;  witness  went  into  the  room,  and  Ryerson, 
Edsall,  L'Homrnedieu  and  Pratt  were  all  in  there  together;  a 
little  while  after  Pratt  came  out,  and  there  was  a  general  talk 
out  in  the  other  room  amongst  the  creditors,  and,  as  witness  was 
concerned,  he  was  talking  with  them  ;  and  it  was  talked  of 
making  an  arrangement  with  Ryerson  for  a  loan,  as  he  under- 
stood, of  about  $30,000;  $4000  of  the  sum  was  to  go  to  Pratt 
to  carry  on  the  business  ;  and  the  same  time,  as  he  understood 
it,  the  money  was  to  go  to  |>ay  off  the  general  creditors ;  it 
appears  there  was  an  adjournment,  and  something  was  to  be 
done  at  Newton  at  the  day  to  which  the  adjournment  was 
made;  at  the  time  of  the  sale  witness  attend  d  again;  whilst 
the  sale  was  going  on,  he  was  told  by  the  creditors  that  it  was 
agreed  that  L'Hornmedieu  should  buy  the  property  for  the  ben- 
efit of  the  creditors  and  the  company  ;  he  was  to  buy  the  pro- 
perty, as  witness  understood,  as  trustee;  witness  had  an  in- 
tention to  buy  the  lot  that  was  subject  to  his  mortgage;  he  did 
not  buy,  because  he  understood  it  was  to  be  bought  in  for  the 
benefit  of  Pratt  and  the  rest  of  the  creditors,  and  because  Pratt 
was  to  have  $4000,  as  witness  understood,  to  go  on  with,  and 
lie  was  willing  he  should  have  it ;  his  chief  conversation  with 
the  creditors  was  with  Rol>ert  Lewis,  Joseph  M.  Brown  and 
William  Edsall,  on  the  subject. 

Cross-examined. — Question — Did  you  ever  hear  Pratt  say, 
shortly  after  the  sale  of  the  property,  that  he  had  obtained 
a  lease,  or  contract  for  a  re-sale  of  the  property,  from  Dr. 
L'Hommedieu,  after  he  had  purchased  it  ?  Answer — Yes,  I  did 
hear  him  say  that  he  had  such  an  article,  and  that  Mr.  Thomp- 
son had  written  it ;  I  understood  it  was  from  Dr.  L'Hommedieu. 

He  understood  that  the  money  that  was  to  be  raised  by  the 
loan,  was  to  go  to  pay  the  creditors  who  were  willing  to  come 
in  and  sign  a  certain  article  amongst  them,  to  contribute  their 
share  of  the  sum  that  was  to  be  advanced,  to  enable  the  works 
to  go  on  ;  this  he  understood  from  Joseph  E.  Ed  sail ;  the 
claims  of  all  the  creditors  generally,  were  to  lie  houglit  up  as 
cheap  as  they  could  be;  L'Homrnedieu  and  Edsail,  he  under- 
stood, were  to  buy  them  up;  he  does  not  know  whose  funds 


304  CASES   IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall.  x 

were  to  be  used  for  the  purpose  of  buying  up  these  claims;  he 
understood  that  the  benefit  the  company  was  to  derive  from  the 
sale  of  the  property  to  L'Hommedieu,  was  the  buying  up  of  the 
outstanding  debts  at  a  discount ;  he  did  not  understand  that 
L'Horamedieu  and  Edsall  were  to  drive  on  the  property  ;  under- 
stood that  Pratt  was  to  do  it ;  the  reason  why  witness  intend- 
ed to  buy  the  wood  lot  that  was  subject  to  his  mortgage,  was, 
that  he  thought  if  he  could  get  it  for  a  trifle,  it  would  save  him 
the  necessity  and  expense  of  foreclosing  his  mortgage ;  L'Hom- 
medieu and  Edsall  have  trespassed  upon  witness,  and  he  has 
prosecuted  them  ;  but  that  would  have  no  effect  upon  the  evi- 
dence he  gives  on  this  occasion. 

John  H.  Simpson,  for  the  complainants. — Was  present  when 
the  sale  was  adjourned,  at  Hamburgh  ;  was  then  a  creditor  of 
the  company;  they  owed  him  three  hundred  and  sixteen  dol- 
lars for  work  and  labor  for  the  company  ;  was  present  at  two 
or  three  meetings  of  the  creditors  of  the  Hamburgh  company, 
in  reference  to  the  settlement  of  the  debts,  and  the  sale  of  the 
property  of  the  company ;  L'Hommedieu  and  Edsall  were  both 
present  at  some  of  these  meetings,  and  sometimes  one  of  them, 
consulting;  witness  heard  Edsall  say  he  was  a  creditor  to  a 
large  amount,  but  does  not  recollect  of  hearing  L'Hommedieu 
say  he  was ;  has  heard  both  of  them  say  that  L'Hommedieu 
had  bought  the  property  as  a  trustee  for  the  company,  and  the 
creditors  and  concern,  so  as  to  make  title;  L'Hommedieu  was 
a  general  agent  for  the  company  and  creditors,  as  witness  con- 
sidered ;  he  understood  from  them  that  Pratt  was  to  have  a  re- 
demption in  some  way,  in  case  he  should  fulfill  certain  contracts  ; 
these  contracts  were  to  raise  some  certain  payments  for  certain 
persons,  preferred  creditors;  heard  a  general  talk  at  a  meeting 
of  the  general  creditors,  at  which  L'Hommedieu  and  Edsall 
were  present,  about  their  making  a  loan  of  David  Ryerson,  of 
$30,000. 

Thomas  D.  Edsall,  for  the  defendants. — Was  a  creditor  of 
the  company  at  the  time  of  the  sale  of  the  mine  property,  as 
one  of  the  firm  of  Vandegriff  &  Edsall ;  we  made  an  assign- 
ment of  this  claim,  and  witness  has  no  interest  in  it  now;  was 
at  Newton  at  the  time  of  the  sale  of  the  Hamburgh  property, 
and  signed  *jhe  agreement  among  the  creditors  at  Newton  ;  had 


DECEMBER  TERM,  1845.  305 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

no  knowledge,  at  the  time  of  the  purchase  of  the  property,  of 
any  other  object  or  purpose  for  the  purchase,  than  is  mentioned 
in  that  agreement ;  it  was  his  understanding  that  the  written 
agreement  embraced  all  the  objects  and  purposes  that  the  credi- 
tors had  in  view  at  the  time;  witness  was  present  at  several 
meetings  of  the  creditors  after  the  sale,  to  consult  and  determine 
what  disposition  to  make  of  the  property,  as  Pratt  did  not  com- 
ply with  the  lease;  these  meetings  were  after  Pratt  had  failed 
to  comply  with  the  article  and  lease  given  to  him  by  the  trus- 
tee ;  Pratt  did  not  do  anything  about  the  premises  towards 
putting  them  in  operation,  after  he  got  the  lease;  the  dam,  or  a 
part  of  it,  had,  in  the  meantime,  gone  away,  and  the  property 
was  unoccupied ;  it  was  while  the  property  was  in  this  situa- 
tion that  the  creditors  had  the  meetings  spoken  of;  witness 
heard  several  of  them  intimate  that  they  would  rather  lose  their 
debt  than  have  anything  to  do  with  driving  the  furnace; 
there  was  a  meeting  of  the  creditors  just  before  L'Hommedieu 
and  Edsall  took  possession;  witness  thinks  he  heard  it  reported 
by  Mr.  Haines,  or  some  one  else,  at  that  meeting,  that  he  had 
seen  Pratt,  and  that  he  had  given  up  all  hope  of  doing  any- 
thing; he  understood  that  Mr.  Haines  had  been  requested  by 
the  creditors  to  see  Pratt;  at  the  last  meeting  of  the  creditors, 
before  L'Hommedieu  and  Edsall  took  possession  of  the  property, 
the  creditors  were  desirous  that  they  should  do  so,  and  appeared 
to  be  very  anxious  that  they  should  go  on;  when  they  com- 
menced to  drive  the  works  they  furnished  and  provided  every- 
thing with  their  own  means,  wnd  have  done  so  ever  since; 
witness  heard  Mr.  Abram  Walker,  who  was  the  agent  oY  Pratt, 
say  the  day  before  he  left  the  furnance,  and  after  Pratt  had  got 
the  lea.se,  and  in  the  month  of  February  or  March,  that  he  was 
going  to  abandon  the  concern,  as  there  was  not  any  prospect  of 
Pratt's  doing  anything;  Walker  went  from  here  to  New  York; 
witness  thinks  he  recollects  of  Pratt's  representing  about  the 
time  he  got  a  lease  for  the  property,  that  he  had  a  man  in  New 
York  who  would  buy  the  property  ;  the  creditors  were  kept  in 
suspense  for  some  time  by  these  representations  of  Pratt  that  he 
was  making  efforts  to  sell  the  property  and  raise  money  ;  lie  fix- 
ed time  after  time  when  it  would  be  accomplished,  every  week 
or  every  two  weeks,  that  somebody  would  be  up,  according  to 


306  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

his  talk;  witness  recollects  of  L'Hommedieu's  starting  to  go  to 
New  York  with  Pratt,  to  see  what  could  be  done  ;  this  was  after 
consi  lerable  delay. 

Robert  Lewis,  for  the  defendants. — Resided  at  Hamburgh 
while  the  Hamburgh  company  were  carrying  on  business;  was 
a  creditor  of  the  company,  as  one  of  the  .firm  of  Brown  & 
Lewis;  they  owed  us,  at  the  close  of  their  company's  concerns, 
between  twelve  and  thirteen  hundred  dollars;  at  the  time  wit- 
ness made  an  assignment  of  his  part  of  the  claim  to  L'Homme- 
dieu,  the  whole  debt  was  upwards  of  thirteen  hundred  dollars  ; 
he  recollects  a  meeting  of  the  creditors  in  Hamburgh,  about 
the  time  the  mine  property  was  advertised  to  be  sold  ;  the  sale 
of  this  property  was  adjourned  from  time  to  time ;  the  claims 
against  the  company  were,  witness  believes,  generally  consid- 
ered very  doubtful  at  that  time  ;  he  thinks  the  debts  of  the  com- 
pany were  estimated  at  that  time  to  be  over  $30,000  ;  this  esti- 
mate did  not  include  the  city  debts,  but  was  made  up  of  the 
debts  in  the  country  ;  it  was  made  with  the  assistance  of  Prait, 
or  some  of  the  agents  of  the  company;  one  of  the  executions, 
Uy  virtue  of  which  the  mine  property  was  sold,  was,  witness  be- 
lieves, iu  favor  of  Brown  and  Lewis  ;  the  creditors  were  de- 
sirous of  purchasing  iu  the  mine  farm  in  connection  with  the 
furnace,  so  as  to  make  them  more  valuable,  and  secure  their 
debts;  for  the  purpose  of  buying  iu  that  property,  L'Hommedieu 
was  appointed  the  trustee  of  the  creditors,  as  he  understood  it; 
after  the  sale  of  the  property,  when  the  lease  was  about  to  be 
made  out  to  Pratt,'  witness  was  consulted  as  one  of  the  creditors 
about  tli*}  terms  of  the  lease;  there  was  also  a  contract  of  pur- 
chase given  to  Pratt,  as  he  believes;  he  does  not  think  that 
Pratt  did  anything  at  the  furnace  after  he  got  the  lease;  the 
dam  went  away  shortly  after;  witness  recollects  of  his  profess- 
ing that  he  was  about  to  raise  money  on  the  property,  after  he 
got  the  lease;  and  understood  from  him  that  he  had  a  man  iu 
New  York  from  whom  he  could  raise  the  money ;  Pratt  kept 
the  creditors  iu  suspense  during  the  winter  and  spring,  under 
the  expectation  that  he  would  raise  mouey  on  this  property  for 
the  creditors;  witness  recollects  of  L'Hommedieu  starting  to  go 
to  New  York  with  Pratt  to  aid  him  in  effecting  this  arrange- 
ment ;  on  his  return,  L'Hommedieu  reported  to  the  creditors 


DECEMBER  TERM,  1845.  207 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

that  Pratt  was  arrested  and  confined  in  jail  ;  the  creditors  met 
several  times  afterwards,  to  consult  what  to  do  with  the  pro- 
perty ;  the  majority  of  them  were  averse  to  embarking  in  the 
business;  witness  was  strongly  opposed  to  it  ;  he  stated  at  the 
time  that  he  should  prefer  losing  his  debt  rather  than  for  the 
creditors  to  embark  in  the  business  and  spend  any  more  money 
on  the  property,  and  he  should  be  of  the  same  opinion  now  ; 
there  was  a  proposition  made  at  the  time  for  the  creditors  to 
join  and  carry  on  the  works;  witness  never  heard  any  objections 
to  any  one  who  pleased  taking  the  works  and  going  ou  with 
them;  he  himself  had  none;  at  this  time  he  should  not  value 
this  property,  including  the  mine  occupied  by  Edsall  and  L'Hom- 
ruedieu,  at  more  than  $20,000  ;  he  should  think  it  would  not 
sell  for  as  much  as  that  at  this  time  ;  he  has  never  considered 
this  property,  since  the  failure  of  the  company,  or  at  the  time 
of  the  sale,  worth  $30,000;  witness  presumes  that  any  under- 
standing which  the  creditors  had  made  with  Pratt  was  carried 
out  with  him  in  the  contract  and  lease  made  with  him,  and  that 
they  gave  him  every  indulgence,  as  long  as  there  was  any  hope 
of  his  doing  anything. 

Benjamin  Hamilton,  for  the  defendants. — After  Pratt  got 
the  lease  and  contract  for  the  premises,  witness  knows  of  his 
making  representations  here,  from  time  to  time,  that  he  was 
about  making  arrangements  to  raise  the  whole  money,  and  sat- 
isfy all  the  creditors;  after  Pratt  got  the  lease,  they  drew  some 
timber  on  the  ground,  witness  thinks  for  the  dam,  and  made 
some  preparations  for  the  dam  ;  he  knows  of  nothing  else  in 
particular  being  done;  Abram  Walker  hail  the  works  in  charge 
at  that  time,  as  he  understood,  as  agent  for  Pratt;  he  knew 
of  Walker  abandoning  the  premises  in  the  spring,  and  heard 
him  say  that  Pratt  did  not  furnish  means,  that  he  had  disap- 
pointed him  a  number  of  times,  he  would  give  the  whole 
thing  up,  and  L'Hommedieu  and  Edsall  might  go  on  and 
do  what  they  pleased  with  it  j  witness  doubts  whether  this 
property  was,  at  the  time  of  the  sale,  or  now,  good  security  for 
$30,000. 

Alpheus  R.  Turner,  for  the  complainants, — Has  frequently 
conversed  with  Edsall  respecting  the  affairs  of  the  Hamburgh 
company  j  on  two  or  three  occasions  subsequent  to  the  sale,  had 


308  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

conversations  with  him  about  the  sale  of  the  property  of  the 
company,  and  the  conditions  of  it;  from  the  conversations 
with  Edsall,  witness  gathered  that  the  sale  of  the  works  took 
place,  and  L'Hommedieu  bought  them,  for  the  purpose  of  per- 
fecting a  title,  and  obtaining  a  loan  on  the  property  ;  the  loan 
was  to  be  made,  according  to  Edsall 's  statement,  for  the  purpose 
of  paying  off  certain  debts  of  the  company,  and  the  residue 
was  to  go  to  Pratt,  to  enable  him  to  carry  on  the  business  of  the 
company,  and  Pratt  had  a  time  to  redeem  it  in;  the  property 
was  to  go,  as  witness  supposed,  to  Pratt  or  the  company ;  they 
were  to  have  the  reversion  after  the  creditors  were  paid  off; 
never  had  any  conversation  with  L'Hommedieu  ;  was  present 
at  the  time  the  creditors  of  the  company  were  assembled,  and 
the  sale  was  going  on  ;  heard  previous  to  the  sale,  and  at  the 
time  thereof,  and  it  was  then  stated,  that  the  property  was  to 
be  sold  as  before  stated,  and  that  David  Ryerson  would  obtain, 
or  endeavor  to  obtain,  a  loan  of  $30,000,  and  that,  iu  conse- 
quence of  that  arrangement,  persons  interested  in  the  property 
consented  to  the  sale ;  understood  there  was  a  mutual  arrange- 
ment between  the  parties  interested,  knows  that  this  arrange- 
ment prevented  any  competition  at  the  sale;  saw  Pratt  there; 
there  was,  apparently,  a  good  deal  of  interest  felt  in  the  sale  of 
the  property ;  there  were  a  great  many  persons  there ;  there 
was  a  general  understanding  at  the  time  of  the  sale,  that  there 
was  a  negotiation  going  on  between  Pratt  and  the  creditors  of 
the  company,  respecting  the  sale  of  the  said  property. 

Cross-examined. — Previous,  and  at  the  sale  of  the  property, 
it  was  witness'  impression,  and  he  believes  that  it  was  the  im- 
pression of  the  creditors  generally,  and  he  was  a  creditor,  that 
the  property  of  the  company  was  not  sufficient  to  pay  them ; 
the  reason  that  witness  came  to  that  conclusion,  was  not  on  ac- 
count of  the  intrinsic  value  of  the  property,  but  on  account  of 
the  bad  management  of  the  property,  and  the  want  of  means 
properly  to  carry  on  the  business. 

Re-examined. — At  the  time  witness  expressed  his  opinion  as 
regards  the  company  not  being  able  to  pay  their  debts,  the  said 
ore-beds  did  not  belong  to  the  company  ;  when  witness  spoke,  on 
his  cross-examination,  about  the  company  not  being  able  to  pay 
their  debts,  he  did  not  mean  to  include  the  ore-bed  ;  the  ore-bed 


DECEMBER  TERM,  1845.  309 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

witness  thought,  if  properly  managed,  was  worth  more  than  the 
whole  of  the  company  property. 

Joseph  M.  Brown,  for  the  complainants. — [Exhibit  A  F 
being  shown  him,  he  says] — That  the  said  paper,  signed  Joseph 
M.  Brown,  is  in  his  own  handwriting. 

Cross-examined. — Not  long  before  the  sale  he  met  with  the 
creditors  of  the  company,  at  Daniel  Haines,  esquire's,  office, 
and  then,  from  the  best  evidence  that  was  adduced,  the  debts  of 
the  company  were  supposed  to  amount  to  between  thirty  and 
thirty-three  thousand  dollars;  witness  thinks  it  was  upwards  of 
thirty-two  thousand  dollars,  according  to  the  claims  then  pre- 
sented ;  this  was  the  sum  claimed  to  be  due  to  the  creditors  for 
whom  L'Hommedieu  was  to  purchase;  some  of  the  claims 
above  referred  to  were  disputed  by  Pratt,  and  it  was  to  be  left 
to  arbitrators  to  determine  the  same. 

Re-examined. — At  the  request  of  Mr.  Haines,  and  other  of 
the  creditors',  at  the  time  the  sale  was  to  take  place,  he  went  to 
Pratt,  to  get  him  to  consent  to  a  sale  of  the  property,  without 
any  agreement  in  writing  as  regarded  the  terms  ;  witness  went 
accordingly,  and  Pratt  declined  doing  anything  then,  as  he 
wished  to  consult  Mr.  Thompson  before  he  did  anything  on  the 
subject,  expressing  his  fears  that  the  creditors  of  the  company 
might  overreach  him  ;  the  sale  of  the  property  of  the  company 
was  then  adjourned,  to  enable  Pratt  and  the  creditors  to  carry 
out  the  arrangement. 

Re-cross-examination. — Witness  considered  himself  in  the 
confidence  of  Pratt,  and  of  the  creditors,  at  the  time  of  the  sale 
of  the  property  of  the  said  company  ;  witness  says  that  he  was 
acting  as  the  friend  of  Pratt,  and  of  the  creditors  of  the  com- 
pany, at  the  time. 

Joseph  H.  Pettis,  for  the  complainants. — Was  present  at  the 
sale  of  the  mine  property,  at  Newton,  which  sale  of  said  pro- 
perty was  first  advertised  to  take  place  at  Hamburgh,  and  after- 
wards adjourned  to  Newton  ;  the  reason  why  the  sale  of  the 
said  property  was  adjourned  from  Hamburgh  to  Newton,  was 
that  at  Hamburgh,  on  the  day  the  sale  was  to  take  place,  the 
creditors  and  persons  interested  in  the  sale  agreed  to  adjourn  it 
till  the  next  day ;  there  was  a  good  deal  of  negotiation  be- 
tween the  creditors  and  the  company  ;  there  was  a  meeting  on 


310  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  EdsalJ. 

that  day  between  the  creditors  and  Pratt,  at  the  tavern  in  Ham- 
burgh ;  Mr.  David  Ryerson  was  there ;  witness  understood 
from  the  parties  interested,  that  provided  the  sale  of  the  said 
property  was  adjourned  over  to  take  place  at  Newton,  he,  Ry- 
erson, thought  he  should  be  able  to  procure  a  loan  of  some 
$30,000,  upon  certain  conditions,  which  were,  that  the  said 
money  should  be  paid  to  the  creditors  of  the  company,  with  the 
exception  of  from  two  to  four  thousand  dollars,  which  was  to  be 
paid  to  Pratt,  for  the  purpose  of  enabling  him  to  carry  on  the 
works  of  the  said  company  ;  in  pursuance  of  this  arrangement 
the  sale  was  adjourned  to  Newton,  and  Mr.  Ryerson  informed 
the  parties  that  he  could  not  effect  the  loan  ;  and  then  further 
negotiations  on  the  subject  took  place ;  the  sale  was  adjourned 
there  once  or  twice ;  it  was  his  understanding  that  it  was 
agreed  that  L'Hommedieu  should  purchase  the  property,  but  in 
what  capacity,  whether  as  trustee  or  not,  he  cannot  say,  only 
it  is  his  impression  that  Pratt  was  to  have  a  lease  of.  the  pro- 
perty back  ;  witness  was  anxious,  as  one  of  the  parties  in- 
terested, to  have  Holcombe's  name  inserted  in  the  lease  with 
Pratt's ;  at  the  time  the  sale  was  to  take  place,  witness  asked 
L'Hommedieu  whether  the  lease  was  to  be  made  to  Holcombe, 
or  to  Pratt  and  Holcombe,  and  witness  being  informed  that  it 
was  to  be  given  to  Pratt  alone,  he  informed  L'Hommedieu  that 
he  should  then  bid  on  the  property,  and  witness  accordingly 
made  two  or  three  bids  on  it ;  he  was  then  taken  out  by  some 
of  the  parties  interested,  who  stated  to  him  that  he  was  injuring 
himself  and  his  interests,  and  from  their  representations  he 
ceased  bidding ;  he  cannot  recollect  who  it  was  that  spoke  to 
him  ;  witness  understood  that  L'Hommedieu  was  to  buy  the 
property,  as  well  for  the  benefit  of  the  company  as  for  the  cre- 
ditors, and  that  Pratt  was  to  have  a  lease  of  the  same ;  at  the 
time  these  negotiations  were  going  on,  a  question  arose  whether 
an  agreement  to  execute  a  lease  to  any  person,  before  a  sale 
took  place,  would  be  valid,  and  there  was  some  disagreement 
on  the  subject;  the  lease,  however,  witness  thinks,  was  executed 
after  the  sale ;  it  was  a  part  of  the  arrangement  at  Hamburgh, 
that  L'Hommedieu  should  buy  the  property,  in  order  that  Ryer- 
.son  .should  obtain  a  loan  on  it,  as  above  alluded  to;  witness' 
impression  is  that,  during  the  negotiations  at  Hamburgh  and 


DECEMBER  TERM,  1845.  311 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

Newton,  it  was  understood  that  L'Hommedieu  was  to  buy  the 
property  for  the  benefit  of  the  company  and  the  creditors  of  the 
company,  and  that  he  was  to  act  in  a  capacity  for  the  benefit  of 
both  ;  and  witness  is  confirmed  in  that  belief,  from  the  circum- 
stance that,  on  former  occasions,  L'Hommedieu  had  acted  in 
that  capacity;  witness  understood,  at  the  time,  that  after  the 
debts  of  the  company  were  paid,  the  property  was  to  revert  to 
the  company;  his  impression  is,  that  such  was  the  general 
understanding  among  all  the  parties  interested,  both  the  credit- 
ors and  the  company;  the  sale  was  made,  witness  thinks,  at  New- 
ton, in  consequence  of  a  similar  arrangement  to  that  entered 
into  at  Hamburgh  ;  but  Ryerson  not  being  able  to  make  the 
loan,  the  property  was  sold,  at  Newton,  to  L'Hommedieu,  both 
for  the  benefit  of  the  creditors  and  the  company  ;  the  desire 
appeared  among  all,  to  be,  that  the  creditors  should  be  paid, 
and  that  the  company  should  go  on. 

B.  Williamson  and  H.  W.  Green,  for  the  complainants.  They 
cited  Saxton  184;  3  Green  266;  2  Ves.  225;  4  John.  Ch.  Rep. 
167  ;  4  Kent's  Com.  141-2. 

S.  G.  Potts  and  P.  D.  Vroom,  for  the  defendants.  They  cited 
Siixton  274 ;  1  John.  Ch.  Rep.  429 ;  Sugden  204-5. 

THE  CHANCELLOR.  The  answer  of  Edsall  and  L'Homme- 
dieu admits  that  they  are  in  possession,  and  the  character  of 
their  possession.  That  Edsall  took  possession  as  mortgagee, 
and  that  L'Hommedieu,  afterwards,  as  purchaser  at  the  sheriff's 
sale,  and  as  trustee  for  the  creditors,  took  possession  of  the  prem- 
ises not  included  in  Edsall's  mortgage,  and  also  of  the  Clin- 
ton mine  farm,  and  that  they  afterwards  agreed  to  unite  in 
putting  the  property  in  repair  and  the  furnace  in  blast,  and  in 
carrying  on  the  business.  L'Hommedieu  admits  he  bought  the 
Clinton  mine  farm  and  the  property  of  the  Hamburgh  com- 
pany, at  the  sheriff's  sale,  under  the  powers  and  instructions,  and 
for  the  sole  purposes  stated  in  the  agreement  of  December  7th, 
1838,  and  as  trustee  for  the  creditors  therein  named.  Edsall, 
then,  is  accountable  for  the  rents  and  profits  of  what  he  is  in 
possession  of,  and,  unless  something  has  taken  place  to  divest 


312  CASES  IN  CHANCERY; 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

the  right  of  the  Hamburgh  company  and  vest  it  in  another,  he 
is  accountable  to  them.  And  L'Hommdieu  holds  subject  to 
account,  as  trustee,  and  to  be  called  upon  to  convey  to  the  bene- 
ficial owners. 

But  these  defendants  deny  that  they,  or  either  of  them,  are 
subject  to  account  to  the  complainants,  or  either  of  them,  or 
that  the  complainants,  or  either  of  them,  have  any  right  to 
redeem,  and  say  that  the  persons  entitled  to  redeem,  as  against 
Edsall,  and  to  call  L'Hommedieu  to  account  as  trustee,  are  cer- 
tain creditors  of  the  Hamburgh  company,  including  L'Homme- 
dieu  and  Edsall,  who  entered  into  the  agreement  of  December 
7th,  1838,  for  the  purchase  of  the  property  by  L'Hommedieu, 
as  their  trustee,  at  the  sheriff's  sale.  This  is  so,  if  that  sale  can 
be  sustained  in  equity. 

On  and  before  December  7th,  1838,  the  sheriff  of  Sussex 
had  in  his  hands  against  the  Clinton  Manfacturing  Company 
a  fi.  fa.  issued  out  of  the  Common  Pleas  of  Sussex,  in  favor  of 
Robert  Lewis  and  Joseph  M.  Brown,  for  $1008.27,  and  an 
execution  from  chancery,  in  favor  of  Nathan  Smith,  on  a  de- 
cree on  a  foreclosure  bill,  dated  March  25th,  1836,  for  the  sale 
of  so  much  of  the  mortgaged  premises  as  would  be  sufficient  to 
pay  the  amount  of  the  decree  and  costs.  Under  these  two  exe- 
cutions, the  sheriff  had  advertised  the  Clinton  mine  farm,  con- 
taining one  hundred  and  nine  acres  and  fifty-seven  hundredths, 
and  the  sale  stood  adjourned  to  the  said  7th  of  December, 
1838.  There  was  due  on  the  two  executions,  including 
interest,  costs,  and  sheriff's  fees,  but  about  $3500,  and  the 
encumbrance  on  which  the  decree  in  chancery  was  founded,  was 
the  first  encumbrance,  so  tfiat  the  purchaser  at  that  sale  would 
get  a  clear  title.  Both  L'Hommedieu  and  Edsall  had  valued 
this  mine  farm,  about  a  month  before,  at  $50,000,  as  appears 
by  certificates  under  their  hands,  given  in  evidence.  On  this 
mine  farm,  Edsall  held  a  subsequent  mortgage,  dated  January 
?0ih,  1838,  for  $4000.  This  farm  was  sold,  at  said  sheriff's 
sale,  for  $4041. 

The  same  sheriff  had  in  his  hands,  at  the  same  time,  five 
executions,  or  judgments  at  law,  against  the  property  of  the 
Hamburgh  company,  on  which  he  had  also  advertised  their 
property  for  sale,  viz. : 


DECEMBER  TERM,  1845.  313 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

J.  E.  Email's  execution,  tested  Nov.  29,  1837,  for  $1,934  85 

John  Gi vans'  execution,  tested  Dec.  1,  1837,  for...  131  15 
Wm.  Jackson's  execution,  tested  3d  Tuesday  in 

August,  1838,  for 816-48 

Stephen  Wray's  execution,  tested  1st  Tuesday  in 

September,  1838,  for 1,071  75 

Davenport's  execution,  tested  the  same  day  for 2,861  55 


Amounting,  in  all,  to $6,815  78 

The  answer  of  Edsall  and  L'Hommedieu  says  that  these 
defendants,  L'Hommedieu  and  Edsall,  and  other  creditors  of 
the  Hamburgh  company,  deeming  it  important  to  the  security 
of  their  claims  against  the  Hamburgh  company  that  the  Clin- 
ton mine,  from  which  the  Hamburgh  company  got  their  ore, 
should  be  bought  for  the  benefit  of  the  Hamburgh  furnace; 
and  despairing  of  Pratt's  being  able  to  pay  or  secure  their  debtsj 
met,  several  weeks  before  the  day  appointed  for  the  sale  of  the 
Clinton  mine  farm,  to  consult  as  to  the  best  means  of  securing 
their  debts;  and  that  it  was  then  agreed  among  said  creditors 
of  the  Hamburgh  company,  that  if  the  Clinton  mine  tract  and 
the  Hamburgh  property  should  be  sold  on  executions,  they 
would  appoint  one  of  their  number  to  buy  the  same,  for  the 
benefit  of- such  of  the  creditors  as  should  become  parties  to  the 
agreement,  in  case  no  one  should,  at  the  sale,  offer  enough  to 
pay  the  encumbrances  and  secure  the  said  creditors;  and  that, at 
that  meeting,  the  said  creditors  settled  on  most  of  the  principles 
of  the  articles  of  agreement  afterwards  executed  on  the  7th  of/ 
December,  1838. 

The  arrangement  of  these  certain  Hamburgh  creditors,  then, 
was  this :  that,  lest  the  Hamburgh  property  should  not  bring 
enough  to  pay  their  debts,  they  would  appoint  one  of  their 
number  to  buy  the  Clinton  mine  and  the  Hamburgh  property. 
But  how  would  the  purchase  of  the  Clinton  company's  mine 
help  pay  the  debts  of  the  Hamburgh  creditors,  if  it  was  bought 
at  its  fair  value  ? 

This  part  of  the  answer  further  says  that  the  debts  and  en- 
cumbrances against  the  Hamburgh  property,  to  the  best  of  the 
knowledge  and  belief,  &c.,  exceeded  $30,000,  and  that  the  debts 
of  the  Clinton  company  existing  as  liens  on  the  Clinton  mine 
tract,  exceeded  $10,000.  What  had  the  liens  on  the  Clinton 

VOL.  i.  u 


314  CASES  IN  CHANCERY.      , 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

mine  tract  to  do  with  the  Hamburgh  creditors  ?  And  how  is  the 
amount  of  liens  on  the  Clinton  mine  tract  to  account  for  the 
bid  at  which  it  was  struck  off,  it  being  sold  on  a  decree  on  tte 
first  encumbrance  ? 

Again,  as  to  the  Hamburgh  lands,  the  answer  says  the  debts 
and  encumbrances  against  the  Hamburgh  company  exceeded 
$30,000.  What  were  the  encumbrances  to  which  they  would 
be  subject  in  the  hands  of  the  purchaser  at  the  sheriffs  sale  ? 
The  answer  does  not  tell  us. 

The  plain  meaning  of  the  arrangement  made  by  those  of  the 
Hamburgh  creditors  who  entered  into  the  agreement  of  Decem- 
ber 7th,  1838,  was,  that  the  Clinton  mine  farm  was  to  be 
bought  as  a  means  of  securing  their  debts  against  the  Hamburgh 
company,  which  necessarily  carries  the  idea  that  it  was  to  be 
bought  for  less  than  it  was  worth,  and  prepares  us  against  sur- 
prise from  the  testimony  showing  the  means  taken  to  prevent 
competition  at  the  sale. 

The  agreement  of  December  7th,  1838,  is  signed  by  L'Hom- 
medieu  for  himself  and  as  trustee,  and  by  Edsall  for  himself 
and  William  Riggs,  and  by  eighteen  other  creditors  of  the 
Hamburgh  company,  by  themselves,  their  attorneys  or  assignees. 
Edsall  held,  at  the  time,  a  subsequent  mortgage  on  the  Clinton 
mine  farm,  which  would  be  cut  off  by  the  sale.  Would  he  have 
suffered  this  mine  farm,  of  the  value  of  which  his  own  estimate 
was  $50,000,  to  be  struck  off  to  another,  or  to  a  trustee  for 
these  Hamburgh  creditors,  for  $4041,  without  some  arpange- 
ment  by  which  his  subsequent  mortgage  was  to  be  provided  for? 
Certainly  not.  And  accordingly,  the  agreement  itself  author- 
izes the  trustee,  who  was  to  buy  at  the  sheriff's  sale  free  from, 
this  mortgage,  to  purchase  and  procure  it  from  Edsall ;  and  au- 
thorizes the  trustee  to  raise,  by  bond  and  mortgage  on  the  pro- 
perties to  be  purchased,  after  they  should  be  purchased  by  him 
for  the  said  creditors,  sufficient  moneys  to  pay  the  purchase 
money  thereof,  and  also  sufficient  to  purchase  and  pay  for  the 
two  Winslow  mortgages  and  the  Sharp  mortgage  on  the  Ham- 
burgh property.  And  it  appears,  by  an  endorsement  on  the 
back  of  the  Edsall  mortgage,  dated  December  10th,  1838,  two 
or  three  days  after  thte  sale  of  the  Clinton  property  to  L'Hom- 
medieu,  the  said  trustee,  that  Edsall  assigned  his  said  mort- 


DECEMBER  TERM,  1845.  310 

Hamburgh  Manufacturing  Co.  v.  Edsall. 


gage,  and  the  bond  it  was  given  to  secure,  to  L'Hommedieu, 
for  $4220,  acknowledged  to  have  been  received  by  him  from 
L'Hommedieu.  By  this  arrangement  Edsall  was  silenced  as  a 
bidder,  and  it  carries  on  its  face  an  admission  of  these  agreeing 
creditors,  that  they  could  pay  at  least  $8200  for  the  Clinton 
mine  tract,  and  that  its  value,  beyond  that,  would  be  a  means 
of  securing  their  debts  against  the  Hamburgh  company.  But 
what  is  the  effect,  beyond  this,  of  this  transaction,  on  the  Clin- 
ton company  and  its  creditors?  It  is  this:  the  Clinton  com- 
pany and  its  creditors  have  had  their  property,  valued  by  two 
of  the  very  purchasers  at  $50,000,  taken  from  them,  by  this 
arrangement,  for  $4041,  and  this  bond  to  Edsall  still  remains  a 
debt  against  them. 

But  this  was  not  all  that  was  done  to  prevent  competition  at 
these  sales.  What  had  been  done  with  and  for  Edsall  could  not 
be  relied  on  as  sufficient  to  secure  to  these  agreeing  Hamburgh 
creditors  the  purchase  of  the  properties  of  the  two  companies  at 
prices  suited  to  their  purposes.  Something  was  necessary  to  be 
done  to  induce  Pratt  to  use  means  to  prevent  competition ;  and 
the  evidence  showing  what  was  done  for  this  purpose  is  so  con- 
sistent with  the  occasion  and  the  purposes  of  these  creditors,  that 
there  can  be  no  good  reason  for  doubting  it.  (The  evidence  on 
this  part  of  the  case  is  here  examined.) 

It  is  certain  that,  after  the  sale,  a  lease  was  made  to  Pratt 
for  three  years,  and  a  contract  entered  into  by  L'Hommedieu 
with  Pratt,  to  convey  to  him  the  whole  Hamburgh  property  and 
the  Clinton  mine  tract,  for  $30,000,  by  deed  of  release,  with 
the  usual  covenants  against  his  ovn  acts.  The  mortgages 
which  then  existed  on  parts  of  the  Hamburgh  property,  amount- 
ing to  $7701.75,  were  to  be  considered  as  part  of  the  said 
$30,000.  And  this  contract  was  made  by  L'Hommedieu,  who 
was  trustee  of  all  the  said  property  for  the  Hamburgh  creditors 
who  e*ntered  into  the  agreement  of  December  7th,  1838.  This 
is,  of  itself,  evidence  that  the  lease  to  and  contract  with  Pratt 
were  made  in  conformity  with  an  understanding  had  and  made 
before  the  sales.  But  the  evidence  is  clear  that  there  was  such 
an  understanding.  True,  the  agreement  of  December  7th, 
1838,  did  not  state  in  terms  that  the  lease  and  contract  to 
convey  should  be  made  to  Pratt.  It  authorizes  and  directs  the 


316  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

trustee  to  lease  all  the  Hamburgh  property  and  the  Clinton 
mine  "  to  some  suitable  competent  person."  The  reason  why 
Pratt's  name  was  not  inserted  is  obvious,  and  is  shown  by  the 
testimony.  The  legal  adviser  saw  that  it  would  be  putting  on 
the  face  of  the  agreement  evidence  of  the  arrangement  with 
Pratt,  to  enable  these  agreeing  Hamburgh  creditors  to  succeed 
in  adding  the  Clinton  mine  farm  to  the  Hamburgh  property,  at 
their  own  price.  It  is  evident,  from  what  passed  before  the  sale, 
that  Pratt  relied  on  getting  this  lease  and  contract;  and  he  did 
get  them.  And  it  cannot  be  disguised,  under  the  circumstances 
and  testimony  in  the  cause,  that  he  got  them  in  pursuance  of  an 
understanding  between  him  and  the  agreeing  Hamburgh  cred- 
itors had  before  the  sale.  The  result,  the  fact  that  the  Clinton 
mine  farm  was  struck  oft' to  L'Hommedieu  for  $4041,  free  from 
all  encumbrances,  and  all  the  Hamburgh  property  for  $285, 
subject  only  to  the  mortgages,  shows  it.  But  there  is  an  amount 
of  evidence  on  this  point  that  cannot  be  resisted. 

The  agreement  among  the  creditors  themselves  is  one  thing ; 
the  agreement  or  understanding  had  before  the  sale,  between 
those  creditors  and  Pratt,  is  another.  The  lease  and  the  privi- 
lege of  purchasing  were  to  go  together ;  this  is  shown  by  the 
agreement  itself,  in  which  the  Hamburgh  creditors  who  signed 
it,  united.  And  that  Pratt  was  to  be  the  lessee,  and  have  the 
said  privilege,  and  that  it  was  so  understood  and  agreed  before 
the  sale,  there  can  be  no  doubt.  (The  testimony  on  this  point 
is  here  examined.) 

The  answer  of  Mr.  Haines  shows  very  plainly,  I  think,  the 
same  thin:;. 

The  testimony  shows  that  it  was  known  among  the  agreeing 
Hamburgh  creditors,  when  the  agreement  among  themselves 
was  drawn,  that  Pratt's  name  could  not  be  safely  put  in  that 
writing,  and  that  it  was  considered  that  it  would  vitiate  the  sale. 

There  was  good  reason  for  the  caution  used  in  not  putting 
Pratt's  name  in  the  writing,  as  lessee,  with  the  privilege  of  pur- 
chasing. But  he  was  to  be  the  man,  and  he  and  the  agreeing 
creditors  so  understood  it.  And  the  lease  with  the  said  privi- 
lege was,  accordingly,  afterwards  executed  to  him. 

There  was,  then,  an  understanding  before  the  sale,  which 
prevented  a  fair  competition  at  the  sale,  and  resulted  in  the 


DECEMBER  TERM,  1845.  317 

Hamburgh  Manufacturing  Co.  v.  Ed-all. 

sacrifice  of  the  property.  It  is  not  necessary  to  advert  particu- 
larly to  what  was  said  before  the  sale  commenced,  and  while  it 
was  going  on,  to  persons  attending  the  sale,  to  prevent  their 
bidding.  Enough  was  done  and  said  to  effect  the  object  of  these 
agreeing  creditors;  and  it  was  effected. 

Under  such  an  arrangement,  and  in  view  of  the  effect  pro- 
duced by  the  arrangement,  the  sale  of  the  Clinton  farm  was 
unlawful  as  against  the  Clinton  company  and  its  creditors  ;  and 
the  sale  of  the  Hamburgh  property  unlawful  as  against  the  Ham- 
burgh company  and  its  creditors.  It  would  not  only  be  disas- 
trous in  its  consequences,  but  it  would  be  a  reproach  upon  the 
courts,  to  allow  property  to  be  sacrificed  at  sales  on  executions, 
by  means  of  such  arrangements  to  prevent  fair  competition. 

It  is  unnecessary  to  consider  that  part  of  the  argument  for 
the  defendants  based  on  the  idea  of  Pratt's  abandonment.  The 
sale  was  unlawful  from  what  passed  before  the  sale. 

The  Hamburgh  property,  as  before  stated,  was  to  be  sold  on 
five  executions  at  law,  of  which  Edsall's  was  the  oldest.  The 
purchaser  at  the  sheriff's  sale  would  get  the  property  free  from 
the  liens  of  these  executions,  and  subject  only  to  the  mortgages. 
Under  the  arrangement  made  between  the  agreeing  Hamburgh 
creditors,  among  themselves,  and  between  them  as  a  body  and 
Pratt,  the  furnace  lot  of  fifty  acres  was  struck  off  at  $26  •  the 
lot  of  woodland  in  Vernon  and  Hardiston,  of  seventy  acres,  at 
one  dollar  ;  another  wood  lot  in  Vernon,  of  one  hundred  and  se- 
venty-five acres,  at  one  dollar  ;  another  wood  lot  in  Vernou,  of 
fifty-five  acres,  at  fifty-five  cents ;  another  wood  lot  in  Vernon, 
of  one  hundred  and  seven  acres,  at  eleven  dollars ;  another 
wood  lot  in  Vernon,  of  forty-five  acres,  at  sixty-five  dollars;  an- 
other wood  lot  in  Vernon,  of  nine  hundred  acres,  at  sixty-eight 
cents ;  and  a  lot  in  Hardiston,  of  one  and  a  half  acres,  on 
which  was  a  storehouse  and  other  improvements,  at  $180 ;  so 
that  the  sale  of  all  these  eight  tracts  brought  but  $285  for  the 
judgment  creditors,  neither  of  whom  was  a  party  to  the  arrange- 
ment, nor  present  at  the  sale,  except  Edsall ;  and  his  debt  was, 
by  the  terms  of  the  arrangement,  to  be  paid. 

Joseph  Sharp  attended  the  sale,  for  the  purpose,  as  he  says, 
of  buying  the  lot  on  which  he  had  a  mortgage,  with  the  view 
of  saving  the  expense  of  a  foreclosure.  He  says  he  did  not  bid 


318  CASES  IN  CHANCERY. 

Hamburgh  Manufacturing  Co.  v.  Edsall. 

because  he  was  told  at  the  sale,  by  the  creditors,  that  it  was 
agreed  that  L'Hommedieu  should  buy  the  property  for  the  bene- 
fit of  the  creditors  and  the  company  ;  in  another  part  of  his 
testimony  he  says  for  the  benefit  of  the  creditors  and  Pratt. 
He  says  his  chief  conversation  on  the  subject  was  with  Robert 
Lewis,  Joseph  M.  Brown,  and  William  Edsall,  all  creditors  who 
had  signed  the  agreement,  and  none  of  them  having  judgments 
against  the  Hamburgh  company.  Edsall,  too,  had  mortgages 
on  different  parts  of  the  Hamburgh  property,  and  had  the  same 
inducement  to  bid,  had  it  not  been  for  the  arrangement. 

The  effect  of  the  arrangement  and  the  sale  under  it,  on  the 
Hamburgh  judgment  creditors,  was  to  displace  their  liens,  and 
substitute  for  the  liens  of  their  judgments,  a  lieu  for  the  book 
accounts  of  the  agreeing  Hamburgh  creditors,  in  the  shape  of 
a  title  in  their  trustee,  L'Hommedieu. 

Again,  Edsall  had  the  first  judgment  lien.  Would  he  have 
allowed  all  these  Hamburgh  lands  to  be  struck  off  to  L'Hom- 
medieu at  such  bids,  but  for  the  arrangement  that  was  made  ? 
By  that  arrangement  he  was  to  get  the  amount  of  hisjudgment. 
By  the  agreement,  the  debts  of  the  agreeing  creditors,  of  which 
he  was  one,  were  to  be  paid  out  of  the  lauds,  including  the  Clin- 
ton mine  farm,  or  out  of  the  money  which  was  to  be  raised  by 
mortgage  on  the  Hamburgh  property  and  the  Clinton  farm. 

The  case  appears  to  me  to  be  very  clear  against  the  defend- 
ants. They  cannot  hold  these  properties  against  these  companies 
and  their  respective  creditors.  Nothing  can  be  done  by  the  court 
in  this  suit,  and  with  the  parties  we  have  before  us  in  it,  in  ref- 
erence to  the  Clinton  mine  farm.  It  cannot  go  to  Pratt.  It 
would  be  as  unavailable  to  the  Clinton  creditors  in  his  hands  as 
where  it  now  is.  Nor  can  it  go  to  Pratt's  assignees  under  the 
insolvent  act,  to  pay  his  individual  debts.  And  the  receivers  of 
the  Clinton  company  are  not  before  us  in  this  suit.  As  to  the  pro- 
perty of  the  Hamburgh  company,  it  will  be  declared  that  L'Hom- 
medieu holds  it  in  trust  for  the  creditors  and  the  company  ;  and 
it  will  be  referred  to  a  master  to  take  an  account  of  the  issues 
and  profits  of  the  property,  and  of  the  debts  ;  and  all  further  di- 
rections will  be  reserved  until  the  coming  in  of  the  master's  report. 

REVERSED  IN  PART,  1  Hal.  Ch.  658 ;  Same  case,  3  Hal.  Ch.  298  ;  4  Hal. 

Ch.  141. 
CITK.P  in  1  Beat.  406. 


CASES  IN   CHANCERY. 

MARCH  TERM,  1846. 


CORNELIUS  WINTER   AND  WIFE  v.  BENJAMIN  GEROE  AND 
WILLIAM  I.  STAGG. 

1.  On  a  sale  of  land  by  a  fiduciary,  he  cannotbuy,  either  directly  or  through 
another. 

2.  Proofs  on  which  it  was  determined  that  one  to  whom  land  was  struck  off 
at  an  executors'  sale  bought  for  the  executors. 


The  bill  states  that  on  the  18th  of  May,  1843,  Daniel  Ge- 
roe  died,  leaving  a  large  personal  and  considerable  real  estate, 
and  leaving  a  will  dated  December  15th,  1836,  by  which,  after 
bequeathing  his  personal  estate,  he  gave  to  his  wife  the  house 
and  lots  where  he  then  lived,  as  long  as  she  should  remain  his 
widow,  and  to  his  son,  Benjamin  Geroe,  the  mountain  lot  in 
ft-e  ;  and  the  remainder  of  his  real  estate  to  his  three  children, 
Peggy,  wife  of  Cornel  iustW  inter;  Caty,  wife  of  William  I.  Stagg, 
and  his  sou  Benjamin,  equally,  in  fee,  to  be  divided  or  sold 
as  two  out  of  the  three  could  agree ;  ami  appointed  said  Stagg 
and  Benjamin  Geroe  executors  of  the  will,  who  proved  the  will. 
That  in  the  fall  of  1843,  the  complainant  Cornelius  Winter, 
and  the  defendants,  Benjamin  Geroe  and  William  I.  Stagg,  met 
for  the  purpose  of  dividing  the  real  estate,  when  they,  the  said 
defendants,  requested  the  complainant  to  rnuke  a  division  there- 
of into  three  parts,  and  that  the  complainant  thereupon  divided 
it  accordingly,  as  equally  as  he  could  ;  but  inasmuch  as  he,  the 
complainant,  thought  that  one  of  the  parts  was  more  valuable 
than  either  of  the  others,  he  proposed  that  the  person  wlio 

319 


320  CASES  IN  CHANCERY. 

Winter  v.  Geroe  and  Stagg. 

should  take  that  share  should  pay  to  each  of  the  others  $66.66, 
to  equalize  the  shares ;  and  that  while  they  were  so  together, 
the  complainant  being  desirous  of  making  a  division  amicably, 
offered  that  the  other  two  should  each  choose  a  share,  and  that 
he  would  take  the  remaining  one.  That  Stagg  then  chose  a 
share,  but  that  Geroe  then  refused  to  choose  a  share  and  declin- 
ed making  such  division ;  and  that  since  that  time,  Stagg  and 
Geroe  have  made  no  further  attempt  to  divide  the  lands. 

That  Stagg  and  Geroe,  as  executors  and  devisees,  afterwards 
advertised  the  lands  for  sale  at  public  vendue,  on  the  18th  of 
January,  1844,  at  the  house  of  John  C.  Ackerson,  innkeeper 
in  Manchester,  Passaic  county.  That  the  complainants,  Win- 
ter and  wife,  not  believing  that  Stagg  and  Geroe,  after  the  said 
proposition  made  to  them  by  Winter,  would  sell  the  property, 
did  not  attend  the  sale. 

The  bill  charges  that  Stagg  and  Geroe,  to  deprive  the  com- 
plainants of  the  property  and  get  the  benefit  thereof  to  them- 
selves, did,  on  the  said  day,  strike  off  to  one  J.  J.  Goetschius, 
who  attended  the  sale  as  their  agent,  a  part  of  the  lands,  and 
did,  with  the  wife  of  said  Stagg,  execute  a  deed  to  Goetschius 
for  four  lots,  (describing  them,)  being  parts  of  said  real  estate ; 
which  deed  purports  to  be  given  by  the  said  Stagg  and  Geroe, 
as  executors  as  aforesaid,  and  Caty,  wife  of  said  Stagg,  and  as 
devisees  under  the  said  will.  That  the  deed  is  dated  January 
20th,  1844,  and  purports  to  be  for  the  consideration  of  $1035. 
That  Goetschius,  with  his  wife,  did  thereupon,  on  the  same  day, 
execute  and  deliver  to  the  said  Benjamin  Geroe  a  deed  for  the 
first  and  third  of  the  said  lots,  purporting  to  be  given  for  the 
consideration  of  $600,  and  a  deed  to  Stagg  for  the  second  and 
fourth  of  said  lots,  purporting  to  be  given  for  the  consideration 
of  $465;  and  that  said  deeds  are  both  quit-claim  deeds,  with- 
out any  covenants.  That  the  said  sale  was  made  to  Goetschius 
as  the  agent  of  said  Stagg  and  Geroe,  and  that  he  conveyed 
the  property  to  them  in  pursuance  of  an  agreement  made  pre- 
vious to  the  sale  to  him.  That  the  sale  was  made  at  about  half 
the  value  of  the  land ;  and  that  the  same  was  so  arranged  by 
Stagg  and  Geroe,  for  the  purpose  of  getting  complainants'  right 
in  the  property  at  less  than  its  fair  value,  and  in  fraud  of  the 
complainants.  That  no  money  was  paid  by  Goetschius,  but 


MARCH  TERM,  1846.  32* 

Winter  v.  Geroe  and  Stagg. 

that -the  sale  to  him,  and  the  price  mentioned  in  the  deed  to 
him,  were  intended  to  deceive  the  complainants,  and  induce 
them  to  believe  that  the  sale  was  bonafide. 

The  bill  prays  that  these  deeds  may  be  declared  to.be  void, 
and  that  Stagg  and  Geroe  may  be  decreed  to  convey  the  pro- 
perty to  such  persons  as  the  court  may  direct,  or  to  convey  one- 
third  part  thereof  to  the  complainants;  and  that  the  property 
may  be  sold  or  divided  under  the  order  of  the  court. 

The  defendants  put  in  their  joint  and  several  answer.  The 
answer,  so  far  as  it  is  necessary  to  state  it,  says  that  one  lot  was 
struck  off  to  Alyea,  and  three  lots  to  Goetschius.  That  the 
bid  of  Alyea  was  then  and  there  declared  by  him  to  be  for  the 
benefit  of  Goetschius,  who  then  and  there  signed  the  condi- 
tions of  sale  and  received  a  deed  for  the  four  lots.  It  denies 
that  the  sale  was  fraudulent  and  intended  to  injure  Winter  and 
wife,  but  alleges  that  it  was  made  in  good  faith.  Denies  that 
the  property,  so  as  aforesaid  sold  to  Goetschius,  was  sold  to  him 
as  the  agent  of  the  defendants,  or  either  of  them  ;  or  that 
Goetschius  attended  the  sale  as  such  agent;  and  denies  that 
the  part  bid  off  by  Alyea,  and  by  him  transferred  to  Goetschius, 
was  sold  to  him  or  Goetschius  as  such  agent ;  or  that  Alyea  at- 
tended the  sale  as  such  agent :  and  says  there  was  no  agree- 
ment, express  or  implied,  between  Goetschius  and  Alyea,  or 
either  of  them,  and  the  defendants,  or  either  of  them,  or  any 
person  on  their  or  either  of  their  behalf,  that  Goetschius  and 
Alyea,  or  either  of  them,  should  give  to  the  defendants,  or 
either  of  them,  or  to  any  other  person,  the  property  by  them 
purchased  at  the  sale,  or  any  part  thereof,  or  that  the  defend- 
ants, or  either  of  them,  should  take  such  property  from  them, 
Goetschius  and  Alyea,  or  either  of  them.  It  denies  that  the 
said  sales  and  conveyances  were  made  pursuant  to  any  agree- 
ment entered  into  prior  to  the  public  sale,  and  denies  that  the 
property  was  sold  at  public  sale  at  a  very  low  price,  at  about 
half  its  fair  value,  though  they  admit  that  they  considered  it 
cheap  at  the  prices  for  which  it  sold. 

The  substance  of  the  testimony  is  as  follows: 

C.  S.  Van  Wagon-er,  for  the  complainants. — Shortly  before 
the  sale  he  told  Stagg  and  Geroe  they  might  sell  the  property, 
but  could  not  buy  it  themselves  ;  that  if  it  would  not  bring 


322  CASES  IN  CHANCERY. 

Winter  v.  Geroe  and  Stagg. 

enough  to  warrant  its  being  sold  to  others,  it  might  be  well  to 
get  some  person  to  bid  it  off,  till  a  fair  and  amicable  settlement 
could  be  made  with  Winter;  that  after* the  sale  Geroe  called 
on  him  and  said  that,  for  the  parts  of  the  property  that  had 
been  bid  off  to  Alyea  and  Goetschius,  the  deeds  were  to  be 
made  out  to  him  (Geroe)  and  Stagg,  and  asked  whether  that 
could  be  done;  he  first  told  Geroe  he  thought  it  could,  but  it 
would  be  necessary  for  Alyea  and  Goetschius  to  assign  their 
rights,  on  the  conditions  of  sale,  to  them  ;  after  a  little  reflec- 
tion he  told  Geroe  he  thought  it  would  be  altogether  illegal; 
that  if  Alyea  and  Goetschius  had  bought  the  property  for  the 
purpose  of  retaining  it,  the  title  should  be  made  to  them,  and 
if  the  title  was  made  to  them,  and  by  them  immediately  to 
Stagg  and  Geroe,  he  did  not  think  it  would  stand  law,  even  if 
the  sale  had  been  bona  fide  to  Alyea  and  Goetschius  ;  he  told 
Geroe  their  best  way  was  to  make  out  the  deeds  to  the  pur- 
chasers as  they  appeared  on  the  list  of  sales ;  ne  asked  Geroe 
whether  Alyea  and  Goetschius  had  paid  any  percentage ;  Ge- 
roe said  not;  that  he  did  not  think  it  worth  while;  that  their 
object  was  to  get  the  estate  settled  ;  that  they  were  at  any  time 
willing  to  do  what  was  right  with  Winter;  from  the  conversa- 
tion, witness  took  it  that  Alyea  and  Goetschius  had  bought  in 
the  property  for  Stagg  and  Geroe,  though  Geroe  did  not  say  so 
in  so  many  words ;  he  did  not  allege  that  Alyea  and  Goetschiua 
had  bought  on  their  own  account ;  Geroe  said,  "  We'll  take 
deeds  and  risk  it;  we  have  taken  advice  upon  it;"  the  subject 
of  conversation  between  him  and  Geroe  was  whether  the  sale 
would  be  valid  if  it  went  to  Alyea  and  Goetschius,  and  from 
them  direct  to  Stagg  and  Geroe;  witness  understood  from  the 
conversation,  and  from  what  had  transpired  between  witness  and 
Geroe,  that  the  property  had  been  bid  in  by  Alyea  and  Goet- 
gchius  for  Stagg  and  Geroe. 

J.  J.  Goetschius,  called  for  the  defendants. — He  attended 
the  sale  and  "  purchased  "  several  lots  (mentioning  them) ;  "  bid 
them  off  at  public  sale;"  he  did  not  attend  the  sale  as  agent 
for  anybody;  there  was  no  agency — not  in  his  mind,  a8  he 
considered  it ;  before  the  sale,  and  he  thinks  on  the  forenoon 
of  the  day  of  sale,  he  saw  Stagg,  and  Stagg  asked  him  whether 
he  was  going  to  the  sale ;  he  thinks  he  told  him  he  did  not 


MARCH  TERM,  1846.  323 

Winter  v.  Geroe  and  Stagg. 

know  whether  he  should  or  not ;  Stagg  told  him  he  had  better 
go,  as  he,  Stagg,  expected  the  sale  would  go  on,  and  if  depo- 
nent bought  any  property  there  that  was  cheap,  he,  Stagg, 
would  take  it  off  his  hands;  witness,  in  speaking  of  agency, 
has  reference  to  this  conversation  ;  if  there  was  any  agency  it 
was  that ;  witness  did  not  consider  it  any  agency  ;  he  consid- 
ered that  if  he  bought  the  property  he  was  at  liberty  to  keep  it, 
or  to  let  Stagg  have  it ;  when  he  bid  off  the  property,  he  had 
an  idea  that  Stagg  would  take  it  from  him;  he  did  not  bid  it 
off  as  agent ;  he  thought  the  property  was  cheap  ;  yet  he  had 
an  idea  that  Stagg  would  take  it  from  him  ;  and  if  he  would 
not,  witness  would  keep  it  himself,  as  it  was  cheap;  he  did 
not  consider  himself  in  any  way  bound  to  give  the  property  up 
to  Stagg ;  Stagg  was  not  bound  to  take  the  property  from  wit- 
ness, any  further  than  he  said  if  witness  bought  it  cheap  he 
would  take  it;  witness  did  not  consider  that  Stagg  was  bound 
to  take  it  by  what  he  said  ;  witness  does  not  think  nor  remem- 
ber of  anything  else  that  passed  between  him  and  Stagg  or 
Geroe,  about  the  property,  before  the  sale ;  after  the  sale,  wit- 
ness took  a  deed  for  the  property  struck  off  to  him,  and  also  for 
that  struck  off  to  Alyea,  from  Stagg  and  his  wife  and  Geroe; 
he  is  under  the  impression  that  on  the  same  day  of  the  sale 
something  was  said  to  him  by  Stagg  and  Geroe  about  their 
taking  the  property,  but  he  cannot  recollect  exactly  what  it 
was  ;  no  conclusion  was  come  to  between  them  on  that  day  ; 
by  conclusion,  he  means  they  made  no  bargain,  confirmed  no- 
thing ;  nothing  was  done  by  which  he  was  bound  to  give  the 
property  up  to  them  ;  nothing  further  passed  between  them,  in 
relation  to  the  property,  till  the  deed  was  given,  that  he  can  now 
remember ;  he  does  not  remember  of  any  positive  agreement 
to  let  them  have  the  property,  only  the  delivery  of  the  deed ; 
there  was  none  before  then. 

Cross-examined. — He  cannot  now  recollect  whether  he  exe- 
cuted one  or  two  deeds.  (It  was  here  admitted  by  the  parties 
that  the  property  bid  off  by  Alyea  was  conveyed  by  this  witness, 
Goetschius,  to  Geroe.)  The  witness  says  it  seems  to  strike 
him  that  something  was  said  to  him,  by  Stagg  and  Geroe,  on 
the  day  of  sale,  about  their  taking  the  property,  but  does  not 
remember  what  was  said  ;  does  not  remember  refusing  to  let 


321  CASES  IN  CHANCERY. 

Winter  v.  Geroe  and  Stagg. 

them  have  it;  when  they  came  to  him,  on  Saturday,  after  the 
sale,  at  his  store,  the  deed  or  deeds  were  already  drawn,  and 
were  brought  there  to  be  executed  ;  they  paid  him  no  more 
money  for  the  property  than  he  gave  ;  he  did  not  pay  anything 
for  the  drawing  or  acknowledging  of  the  deeds ;  Stagg  and 
Geroe  paid  or  gave  him  a  small  compensation  for  his  trouble 
— two  dollars ;  he  thinks  he  would  have  gone  to  the  sale  if 
Stagg  had  not  spoken  to  him  about  it,  but  is  not  positive  ; 
he  did  not  ask  any  compensation,  but  they  gave  him  two 
dollars ;  the  deeds  were  brought  to  deponent's  store  by  Stagg 
and  Geroe,  to  be  executed  by  him  ;  he  does  not  exactly  remem- 
ber whether  the  two  dollars  were  given  to  him  or  his  wife ; 
it  was  his  intention  they  should  go  to  his  wife ;  it  was  entirely 
gratuitous. 

David  J.  Alyea,  sworn  for  the  defendants. — He  bought  a  lot; 
it  was  struck  off  to  him  for  $410  ;  he  did  not  attend  the  sale 
as  agent  for  Stagg  and  Geroe,  or  either  of  them  ;  did  not  bid 
off  that  lot  as  agent  for  them,  or  either  of  them ;  there  was 
not,  before  the  sale,  any  agreement,  understanding  or  arrange- 
ment between  him  and  Stagg  and  Geroe,  or  either  of  them, 
that  they  should  take  the  lot  struck  off  to  him  ;  in  making  his 
bid  and  purchasing,  he  acted  entirely  on  his  own  responsibility  ; 
after  the  lot  was  struck  off,  Goetschius  took  his  bid  ;  this  was 
not  the  day  of  the  sale,  but  a  day  or  two  afterwards,  as  near 
as  he  can  recollect ;  Stagg  had  then  spoken  to  him,  and  offered 
to  take  the  lot  off  his  hands  ;  this  was  after  the  day  of 'sale;  he 
transferred  the  bid  to  Goetschius  at  Stagg's  request ;  Stagg  or 
Geroe  had  not  requested  him  to  attend  the  sale,  more  than  that 
one  of  them  told  him  the  property  was  to  be  sold  on  a  certain 
day  ;  when  he  went  to  the  sale  he  did  not  intend  to  bid  ;  did 
not  know  that  he  should  be  a  purchaser;  he  was  induced  to 
bid  because  he  thought  the  lot  cheap ;  no  person,  on  that  day, 
or  at  the  sale,  requested  witness  to  bid  for  him;  he  did  not  re- 
ceive any  hint  or  intimation  from  any  person,  either  before,  or 
at,  or  during  the  sale,  that  if  he  bought,  what  he  bouglit  would 
be  taken  off  his.  hands;  when  the  lot  was  struck  off  to  him 
he  expected  to  keep  it,  to  the  best  of  his  knowledge;  he  did  not, 
while  bidding,  expect  the  bid  to  be  taken  off  his  hands  by  either 
Stagg  or  Geroe;  Stagg  came  to  him,  while  bidding,  and  asked 


MARCH  TERM,  1846.  325 

Winter  v.  Geroe  and  Stagg. 

him  who  he  was  bidding  for;  he  told  him  he  was  bidding  for 
himself;  Stagg  did  not  give  him  anything  for  his  bid  ;  he  did 
not  pay  the  percentage;  he  was  not  called  on  to  do  it;  he  did 
not  sign  the  conditions  of  sale;  does  not  think  he  wns  asked  to 
do  so ;  did  not  sign  any  written  transfer  of  his  bid  to  Goet- 
schius  ;  it  was  done  verbally  ;  he  does  not  recollect  signing  any 
transfer  of  his  bid. 

Henry  M.  Speer,  sworn  for  the  complainants. — He  was  at 
the  sale  ;  directly  after  the  sale,  he  told  Alyea  he  had  bought 
that  property  cheap,  and  asked  him  what  he  would  take  for  his 
bargain  ;  Alyea  said  he  did  not  know  ;  witness  told  him  he 
could  find  a  man  who  would  give  him  $150  in  cash  for  his  bar- 
gain ;  Alyea  asked  who  it  was ;  witness  told  him  it  was  Mr. 
Myers ;  Alyea  did  not  say  whether  he  would  take  it  or  not ; 
at  another  time  he  asked  Alyea  whether  he  bought  the  property 
for  himself  or  not ;  he  said  no — he  bought  it  in  for  them ; 
at  the  first  conversation  with  Alyea,  witness  went  in  to  see 
what  he  would  take  for  his  bargain,  and  told  Alyea  that  Myers 
would  give  him  $150  for  his  bargain  ;  when  Alyea  said  he 
bought  it  in  for  them,  he  did  not  mention  any  names,  but  de- 
ponent supposed  he  meant  Stagg  and  Geroe. 

The  conditions  of  sale  were  dated  January  18th,  1844,  and  are 
signed  by  Stagg  and  Geroe,  as  executors,  &c.,  of  Daniel  Geroe, 
deceased.  The  following  endorsement  appears  on  the  conditions 
of  sale.  "  I  have  purchased  at  sale  within-named  lot  No.  2  on 
a  map  made  by  C.  S.  Van  Wagoner,  for  John  J.  Goetschius. 
January  18,  1844.  DAVID  J.  ALYEA." 

A.  S.  Pennington,  for  the  complainants.  He  cited  1  Coxefs 
N.  J.  Rep.  26 ;  8  Vesey  345-6-8;  3  Brown's  Ch.  119;  3  Har. 
Rep.  81;  Sawyer  on  Trusts  376,  390;  1  WU.  320. 

D.  Barkalow,  for  the  defendants.  He  cited  2  Hill  434;  2 
Caine's  Cases  in  Error  183;  3  Paige  178;  3  Ves.,  Jr.,  740, 
note. 

THE  CHANCELLOR.  There  is  no  controversy  as  to  the  la\v 
of  the  case  made  by  the  bill.  It  is  within  the  principle,  that  on 
a  sale  by  a  fiduciary,  he  cannot  buy  either  directly  or  through 


326  CASES  IN  CHANCERY. 

T ~       '  — " 

Winter  v.  Geroe  and  Stagg. 

another.  The  question  raised  and  argued  is,  whether  from  the 
bill,  answer  and  proofs  in  the  cause,  it  appears  that  the  defend- 
ants, Stagg  and  Geroe,  who  made  the  sale,  did,  through  an- 
other, buy  the  property  themselves.  It  is  a  question  of  fact. 

If  the  answer  is  to  be  taken  as  a  full  denial,  (perhaps  the  im- 
perfection which  is  discoverable  in  it  was  not  intended,)  I  think 
it  is  overcome  by  the  testimony  on  the  part  of  the  complainants 
and  the  corroborating  circumstances. 

The  sale  was  made  on  the  18th;  on  the  20th  the  deed  to 
Goetschius,  and  the  deeds  from  him  to  Stagg  and  Geroe  were 
made  and  delivered.  They  were  all  prepared  by  the  defend- 
ants, and  taken  to  Goetschius'  store  to  be  executed  by  him. 
Two  dollars  were  given  to  Goetschius  or  his  wife  for  his  trouble, 
and  nothing  passed  between  Goetschius  and  the  defendants  af- 
ter the  sale,  till  the  deeds  were  given. 

These  are  all  strong  circumstances.  The  bill  is  supported  by 
the  testimony  of  Van  Wagoner,  called  for  the  complainants; 
and  the  testimony  of  Goetschius,  though  called  for  the  defend- 
ants, is  clearly  and  strongly  in  support  of  the  bill.  The  credit 
of  Alyea,  called  for  the  defendants,  is  impaired  by  a  discrepancy 
in  his  own  testimony,  and  by  the  testimony  of  Henry  M.  Speer, 
sworn  for  the  complainants,  who  says  that  in  conversation 
with  Alyea,  shortly  after  the  sale,  he  told  Alyea  that  Myers 
would  give  him  $150  for  his  bargain  ;  that  Alyea  said  nothing 
at  that  time  in  answer.  That  at  another  time,  he  asked  Alyea 
if  he  had  bought  for  himself,  and  he  answered  no,  he  had 
bought  for  them  ;  meaning,  as  witness  understood  it,  Stagg  and 
Geroe. 

I  think  this  is  a  case  which  calls  for  the  judgment  of  the 
court  in  support  of  a  principle  which  the  policy  of  the  Jaw  re- 
quires should  be  strongly  maintained.  It  would  be  of  dangerous 
tendency  to  be  lax  in  the  application  of  this  principle.  It  would 
encourage  cunning  and  dissimulation,  and  a  resort  to  unworthy 
devices  to  cheat  the  law. 

The  sale  will  be  declared  void. 

REVERSED  on  question  not  raised  before  the  Chancellor,  1  Hal.  Ch.  655. 
CITED  in  Blauvelt  v.  Ackerman,  5  G.  E.  Or.  14(1. 


MARCH  TERM,  1S4G.  327 


Blair  v.  M'Donncll. 


WILLIAM  BLAIR  v.  JAMES  J.  M'DONNELL. 

Relief  granted  where,  by  mistake  of  both  seller  and  buyer,  the  deed  did 
not  cover  the  lands  intended  to  be  sold  and  bought,  and  money  paid  on  ac- 
count of  the  purchase  decreed  to  be  repaid,  and  the  bond  and  mortgage  given 
by  the  purchaser  to  be  canceled. 

On  the  18th  of  March,  1842,  James  J.  M'Donnell  conveyed 
to  William  Blair  two  lots  in  Harsimus,  by  the  following  descrip- 
tion :  "  All  those  two  lots  of  land  in  Harsimus,  in  the  county  of 
Hudson,  being  part  of- block  No.  150,  on  a  certain  map  or  chart 
of  Harsimus  made  by  J.  A.  Mangin,  and  recorded  in  the  office 
of  the  clerk  of  Bergen ;  on  which  block  the  said  two  lots  may 
be  known  as  lots  numbers  19  and  20,  each  lot  being  25  feet 
wide  in  front  and  rear,  and  100  feet  deep,"  for  the  consideration 
of  $1000,  with  covenants  of  seizin  and  warranty.  Blair,  on  the 
same  day,  gave  his  bond  to  M'Donnell  for  the  $1000,  payable 
in  two  years,  with  interest ;  and,  with  his  wife,  executed  to 
M'Donnell  a  mortgage  on  the  lots  described  in  the  deed,  to 
secure  the  bond.  On  the  same  day,  Blair  paid  M'Donnell  $200 
of  the  money,  and  it  was  endorsed  on  the  bond. 

These  two  lots,  described  in  the  deed  and  mortgage,  fronted 
on  Erie  street,  extending  from  front  to  rear  in  a  line  parallel 
with  South  Seventh  street,  and  fifty  feet  distant  from  that  street. 
The  block  No.  150,  is  400  feet  long,  between  Erie  and  Grove 
streets,  and  200  feet  wide,  between  South  Sixth  and  South 
Seventh  streets ;  and,  on  the  map  referred  to,  there  are  laid  out 
eight  lots  of  25  feet  wide  and  100  feet  deep,  fronting  on  Grove 
street,  occupying  the  whole  front  of  the  block  on  that  street; 
and  eight  lots  of  the  same  width  and  depth  fronting  on  Erie 
street,  occupying  the  whole  front  of  the  block  on  that  street  ; 
leaving  two  tiers  of  lots,  of  eight  lots  in  each  tier,  of  the  same 
front  and  depth,  one  tier  fronting  on  South  Sixth,  and  the  other 
on  South  Seventh  street.  Lots  17  and  18  on  the  map  lay  be- 
tween the  lots  described  in  the  deed  and  South  Seventh  street, 
and  fronted  on  Erie  and  South  Seventh  street,  and  extending  in 
depth,  along  South  Seventh  street,  100  feet. 

During  the  negotiation  between  M'Donnell  and  Blair,  M'Don- 


328  CASES  IN  CHANCERY. 

Blair  v.  M'Donnell. 

nell  took  Blair  to  the  corner  of  Erie  and  South  Seventh  streets, 
and  showed  him  the  ground  he  proposed  to  sell  to  him,  and 
represented  it  as  comprising  two  lots  adjoining  each  other,  in  all, 
50  feet  front  and  rear,  and  100  feet  deep,  fronting  on  South 
Seventh  street,  and  bounded  by  the  easterly  line  or  side  of  Erie 
street ;  and  that  the  said  lots  formed  the  southwest  corner  of 
block  No.  150,  on  the  said  map  made  by  Mangin.  M'Donneli 
told  the  complainant  there  was  no  necessity  for  his  being  at  any 
trouble  or  expense  in  making  searches  for  the  title  of  the  said 
premises,  or  for  any  encumbrances  thereon,  and  referred  him  to 
Mr.  Cassidy  for  information  in  reference  thereto.  Blair  accord- 
ingly applied  to  Mr.  Cassidy,  and  was  told  by  him  that  the  title 
was  good ;  and  Blair,  being  satisfied  with  these  representations, 
took  the  deed,  and  gave  the  bond  and  mortgage. 

After  receiving  his  deed,  Blair  made  preparation  to  build  a 
house  on  the  premises,  and  caused  a  quantity  of  building  mate- 
rials to  be  conveyed  to  what  M'Donneli  had  represented  to  be 
the  front  of  the  lots  he  bought ;  when  he  was  told  that  the  lota 
19  and  20  described  in  his  deed,  did  not  fronton  South  Seventh 
street,  nor  form  the  southwest  corner  of  Erie  and  South  Seventh 
streets  ;  but  that  they  front  on  Erie  street,  and  are  50  feet  distant 
from  South  Seventh  street. 

Blair  filed  his  bill,  stating  the  foregoing  facts,  and  praying 
that  M'Donnell  may  be  decreed  to  repay  the  $200,  with  interest 
thereon,  and  to  give  up  the  bond  and  mortgage  to  be  canceled, 
on  the  complainant's  releasing  to  him  all  his  interest,  &c. 

M'Donneli  put  in  his  answer,  stating  that,  on  the  1st  April, 
1835,  one  Hutton  bought  from  the  Messrs.  Coles  the  four  lots, 
17,  18,  19,  20,  as  laid  out  on  said  Mangin's  map.  That,  on 
the  18th  August,  1836,  Hutton  conveyed  to  one  Israel  Cham- 
pion the  two  of  the  said  lots  which  are  marked  17  and  18, 
That  Champion  built  and  enclosed,  fronting  on  South  Seventh 
street,  That,  on  the  15th  October,  1839,  J.  C.  Terhune,  sheriff, 
on  an  execution  against  Hutton,  sold  the  other  two  of  the  four 
Jots,  viz.,  19  and  20,  to  the  defendant  for  $1500.-  That  the 
deed  from  the  sheriff  to  him  describes  as  thereby  conveyed,  two 
Jots  bought  by  Hutton  of  the  estate  of  Coles,  numbered  19  and 
20,  southwest  corner  of  block  No.  150,  on  the  said  Mangin'.s 
map.  The  defendant  admits  that  he  represented  and  pointed 


MARCH  TERM,  1846.  329 


Blair  v.  McDonnell. 


out  to  the  complainant,  as  stated  in  the  bill,  that  the  lots  fronted 
50  feet  on  South  Seventh  street,  and  extended  along  the  easterly- 
side  of  Erie  street  100  feet,  and  formed  the  southwest  corner 
of  block-150.  He  says  that  at  the  time  of  the  said  sale  and 
conveyance  by  him  to  the  complainant,  the  space  of  50  feet 
front  by  100  feet  deep,  fronting  on  South  Seventh  street,  was 
enclosed  by  a  fence,  and  had  been  previously  cultivated  by 
Hutton.  That  the  four  lots  bought  by  Hutton  from  the  estate 
of  Coles,  formed  one  parcel  of  100  feet  square,  being  the  south- 
east corner  of  block  No.  150;  that  they  are  known  as  lots  17, 
18,  19  and  20,  on  said  Mangin's  map;  and  that  it  was  sup- 
posed and  understood  by  Hutton,  when  he  bought  them,  as  the 
defendant  has  been  informed  and  believes,  that  they  were  num- 
bered on  South  Seventh  street,  instead  of  on  Erie  street,  as  laid 
down  on  said  map  ;  and  that  in  pursuance  of  that  belief  on  the 
part  of  Hutton,  Hutton  sold  and  conveyed  to  Champion  num- 
bers 17  and  18,  which  both  Hutton  and  Champion  understood 
and  believed  fronted,  and  were  numbered,  on  South  Seventh 
street;  and  that,  in  accordance  with  that  understanding  and  be- 
lief, Champion  built  a  house  and  stable  and  other  necessary 
buildings  upon,  and  enclosed  a  space  of  50  feet  by  100  feet, 
embracing  the  rear  half  of  said  four  lots,  as  they  are  laid  down 
and  numbered  on  the  said  map,  the  house  and  stable  fronting 
on  South  Seventh  street ;  and  that  Champion  has  occupied  the 
said  space  for  more  than  nine  years  ;  and  that  Hutton,  after  his. 
conveyance  to  Champion,  retained  possession  of  the  other  half 
of  said  space,  considering  it  as  lots  19  and  20,  numbered  on 
South  Seventh  street,  up  to  the  time  of  the  sale  by  the  sheriff  as 
aforesaid,  when  the  defendant  bought  under  the  full  belief  that 
lots  19  and  20  fronted  on  South  Seventh  street,  and  included 
the  corner  of  said  block,  and  extended  100  feet  on  Erie  street ; 
and  that  he  sold  and  conveyed  to  the  complainant  under  the 
same  belief.  That  at  the  time  Champion  applied  to  Hutton  for 
the  purchase  of  two  lots  on  said  block  150,  he  was  desirous 
of  buying  the  two  lots  whidh  (considering  the  four  as  numbered 
on  South  Seventh  street)  formed  the  southwest  corner  of  the 
block,  but  Hutton  refused  to  sell  them,  though  Champion  offered 
him  $200  more  for  them  than  he  paid  Hutton  for  the  lots  he 
bought;  aud  that  the  defendant  was  present  at  the  conversation. 
VOL.  i.  x 


330  CASES  IN  CHANCERY. 

Blair  v.  McDonnell. 

The  defendant  submits  to  the  court  whether  the  deed  from  him 
to  the  complainant  is  not  a  good  and  valid  deed,  to  pass  the 
title  of  the  part  in  tended /to  be  conveyed  and  bought,  inasmuch 
as  the  different  grantees  bought  believing  the  lots  to'be  num- 
bered on  South  Seventh  street,  especially  as  there  was  no  fraud 
in  the  matter,  but  merely  a  mistake  as  to  the  numbering  of  the 
lots. 

The  proofs  taken  show  the  facts  to  be  as  they  may  be  suffi- 
ciently gathered  from  the  bill  and  answer. 

Bentley,  for  the  complainant.  He  cited  1  Story's  Eq.,  §§  141, 
142,  155,  156,  193;  2  Ibid.,  §§  192-4. 

M.  Ogden,  contra,  cited  1  Story's  Eq.,  §§  110-12. 

THE  CHANCELLOR.  This  is,  no  doubt,  a  case  of  mutual  mis- 
take. There  is  no  ground  for  a  charge  of  fraud  in  the  defend- 
ant. The  mistake  was  not  in  reference  to  the  land  which  the 
defendant  proposed  to  sell,  and  the  complainant  to  buy.  That 
was  well  understood  by  both  parties  ;  it  was  50  feet  front  and 
rear,  on  the  southwest  corner  of  block  150,  fronting  on  South 
Seventh  street,  and  extending  along  the  easterly  side  of  Erie 
street  100  feet.  The  mistake  was  in  supposing  that  a  deed  for 
lots  19  and  20,  as  numbered  on  Mangin's  map,  would  convey 
what  the  one  proposed  to  sell  and  the  other  to  buy. 

It  is  claimed,  on  the  part  of  the  defendant,  that  from  the 
manner  in  which  Champion  enclosed  and  built,  it  must  be 
taken  that  his  purchase  from  Hutton  was  of  50  feet  fronting  on 
South  Seventh  street,  and  extending,  in  depth,  across  the  rear 
half  of  the  four  lots,  17,  18,  19  and  20.  It  is  true  that  Hut- 
ton,  owning  the  100  feet  square,  might  have  sold  as  he  pleased, 
fronting  either  on  South  Seventh  or  on  Erie  street ;  and  if  he 
sold  to  Champion  the  lot  as  now  enclosed  by  him,  the  residue 
of  the  100  feet  square  might  have  been  considered  as  having 
passed  by  the  sheriff's  deed  to  the  defendant;  in  which  case,  a 
reformation  of  the  deed  from  the  defendant  to  the  complainant 
would  have  been  the  proper  relief.  But  the  deed  from  Hutton 
to  Champion  conveyed  lots  17  and  18,  as  laid  down  on  Mau- 
gin'a  map. 


MARCH  TERM,  1846.  331 

Taylor  v.  Thomas. 

It  may  he  that,  notwithstanding  that  description,  sufficient 
might  be  shown  to  establish  that  Hutton  intended  to  sell  and 
Champion  to  buy  the  lots  as  now  enclosed  by  Champion  ;  and 
to  induce  the  court,  in  a  proceeding  between  the  proper  parties, 
to  reform  that  deed.  But  that  cannot  be  done  in  this  suit. 
Champion,  notwithstanding  the  manner  in  which  he  has  en- 
closed, claims  title  according  to  the  description  in  his  deed  ;  and 
that  covers  half  of  the  land  in  reference  to  which  M'Donuell 
and  the  complainant  dealt.  To  reform  the  deed  from  M'Don- 
nell  to  the  complainant,  and  leave  the  complainant  to  rely  on 
confining  Champion's  title  to  the  lot  he  has  enclosed,  would  not 
be  the  measure  of  relief  to  which  the  complainant  is  entitled, 
It  would  put  the  complainant  in  the  position  of  having  bought 
a  lawsuit  with  Champion  ;  a  thing  which  he  certainly  never 
consented  to,  and  which  the  defendant  never  intended  to  im- 
pose on  him.  The  relief  sought  by  the  bill  is  the  proper  relief 
in  the  case. 

Decree  accordingly. 


GRIFFIN  TAYLOR  v.   GEORGE   C.   THOMAS  AND   WIFE,  AND 
SOPHIA   CRITTENTON. 

1.  Between  <wo  mortgagees,  neither  having  notice  of  the  other's  mortgage, 
the  mortgage  first  recorded  has  preference,  though  the  other  was  first  executed, 
and  had   been  •  foreclosed,  and  the  holder  of  it  had  bought  the  mortgaged 
premises  at  the  sale  under  the  decree  in  the  foreclosure  suit ;  the  holder  of 
tha  mortgage  first  recorded  not  having  been  made  a  party  in  that  suit. 

2.  On  a  bill  by  the  holder  of  the  mortgage  last  given,  but  first  recorded, 
denying  notice  of  the  mortgage  prior  in  date,  and  answer  averring  notice,  and 
replicatiqn,  the  cause  being  brought  to  a  hearing  on  bill,  answer  and  repli- 
cation, it  was  decreed  for  the  complainant. 


The  bill  is  for  the  foreclosure  of  a  mortgage,  dated  Febru- 
ary 25th,  1839,  given  by  George  C.  Thomas  and  Anna,  his  wife, 
to  Griffin  Taylor,  recorded  February  27th,  1839.  The  mort- 
gage covers  two  distinct  lots.  The  bill  states  that  the  com- 
plainant has  discovered  the  record  of  a  mortgage  on  the  lot  se- 


332  CASES  IN  CHANCERY. 

Taylor  v.  Thomas. 

condly  described  in  his  bill,  purporting  to  have  been  made  by 
said  Thomas  and  wife  to  Sophia  Crittenton,  dated  April  1st, 
1836,  but  that  the  said  mortgage  was  not  registered  till  July  3d, 
1 840 ;  and  that  he  had  no  notice  or  knowledge  of  the  existence 
of  the  mortgage  of  the  said  Sophia  at  the  time  of  the  making 
and  recording  of  the  mortgage  to  him.  That  the  complainant 
has  discovered  the  record  of  a  deed  from  the  sheriff  of  Essex  to 
the  said  Sophia,  dated  January  21st,  1843,  conveying  to  her  the 
lot  mentioned  in  her  mortgage  ;  and  that  it  appears  by  that  deed 
that  it  was  made  by  virtue  of  an  execution  issued  on  a  decree 
of  this  court,  for  the  foreclosure  of  the  said  mortgage  of  the 
said  Sophia,  and  the  sale  of  the  lot  described  therein,  in  a  suit 
in  which  the  said  Sophia  was  complainant,  and  the  said  Thomas 
and  wife,  and  others,  were  defendants ;  but  that  he,  Taylor,  was 
not  made  a  party  to  that  suit,  and  had  no  notice  of  it. 

The  defendants  put  in  their  joint  and  several  answer.  They 
admit  the  bond  and  mortgage  to  the  complainant,  and  the  regis- 
try thereof,  as  stated  in  the  bill,  and  that  the  mortgage  to  So- 
phia Crittenton  is  dated  and  was  registered  as  in  the  bill  is 
stated.  They  admit  the  foreclosure  of  the  mortgage  to  Sophia 
Crittenton,  and  the  sale  of  the  lot  mentioned  therein,  by  the 
sheriff  of  Essex,  under  the  decree  of  this  court,  and  the  pur- 
chase thereof  by  her  at  the  sheriff's  sale.  And  the  defendants 
say  that  though  the  said  mortgage  to  the  said  Sophia  was  not 
registered  for  several  years  after  it  was  executed,  the  fact  of  its 
existence  was  known  to  the  family  of  the  said  Thomas,  and  the 
interest  thereon  was  paid  from  time  to  time ;  and  that  the  failure 
to  have  it  registered  was  on  account  of  the  ignorance  of  the  said 
Sophia  of  the  necessity  of  having  it  registered.  And  the  said 
Sophia  says  she  has  always  understood  and  believed,  and  she 
so  charges,  that  the  complainant,  at  the  time  of  the  execution 
and  delivery  of  his  mortgage,  was  informed  and  had  full  notice 
of  the  mortgage.  And  she  says  she  is  informed  and  believes, 
and  so  charges,  that  it  was  the  intention  of  the  said  George  C. 
Thomas,  when  he  gave  the  mortgage  to  the  complainant,  to 
include  therein  only  the  first  lot  therein  mentioned,  and  not  the 
lot  which  had  been  previously  mortgaged  to  her;  and  that  in 
the  suit  for  the  foreclosure  of  her  mortgage,  the  complainant 
was  not  made  a  party,  because  neither  she  nor  her  counsel  sup- 


MARCH  TERM,  1846.  333 

Taylor  v.  Thomas. 

posed,  or  had  any  idea  that  his  mortgage  covered  any  part  of 
the  land  covered  by  her  mortgage.  And  the  defendant  George 
C.  Thomas  says  that  the  mortgage  to  the  complainant  was  given 
on  a  compromise  of  an  old  disputed  claim,  and  was  intended  to 
be  given,  and  so  understo&d  by  the  parties  at  the  time,  on  the 
first  lot  therein  contained,  and  that  it  was  not  the  understanding 
or  intention  of  the  parties,  at  the  time  of  making  the  mortgage 
to  the  complainant,  that  it  should  include  any  part  of  the  laud 
mortgaged  to  the  said  Sophia. 

A.  S.  Hubbdl,  for  the  complainant. 
J.  J.  Chetwood,  fbr  the  defendants. 

THE  CHANCELLOR.  This  cause  was  brought  to  a  hearing 
on  the  bill,  answer,  and  replication,  no  testimony  being  taken 
on  either  side. 

The  mortgage  of  the  complainant  is  entitled  to  priority.  It 
was  on  the  defendant  to  show  that  the  complainant  had  notice 
of  the  mortgage  prior  in  date,  by  proof  either  of  actual  notice, 
or  of  circumstances  from  which  notice  could  be  inferred. 

The  foreclosure  of  the  prior  mortgage  cannot  affect  the  rights 
of  this  complainant,  he  not  having  been  made  a  party  in  that 
suit. 

Decree  accordingly. 


334  CASES  IN  CHANCERY. 


Receivers  of  Mechanics'  Bank  v.  Godwin. 


THE  EECEIVERS  OF  THE  MECHANICS'  BANK  OF  PATERSON 
v.  CALEB  M.  GODWIN  ET  AL. 

In  1832,  G.  and  B.,  partners,  leased  a  building  and  water-power,  and  put 
Machinery  into  the  building,  for  the  purpose  of  carrying  on  their  partner- 
ship business.  In  1834,  G.  gave  a  mortgage  on  his  interest  in  the  mill  and 
machinery,  as  security  for  his  individual  debt.  A  bill  was  filed  in  July,  1840, 
for  the  foreclosure  of  the  mortgage  and  the  sale  of  G.'s  interest.  The  lessor 
was  made  a  defendant.  The  parties  continued  in  the  possession  and  use  of 
the  mill  and  machinery.  At  the  time  of  the  filing  of  the  bill,  and  at  the 
hearing  of  the  cause,  there  was  rent  due  from  the  partnership  to  the  lessor. 
Held,  that  the  mortgagee  was  not  entitled  to  G.'s  interest  in  the  machinery, 
free  from  the  rent,  but  that  the  interest  which  the  complainants  were  entitled 
to,  and  whi«h  could  be  decreed  to  be  sold  under  their  mortgage,  was  only 
what  G.  would  be  entitled  to  after  paying  the  debts  of  the  partnership,  includ- 
ing the  rent. 

The  material  facts  of  the  case  sufficiently  appear  in  the  opinion 
delivered. 

A.  Whitehead,  for  the  complainants. 

E.  B.  D.  Ogden,  for  the  defendants.  He  cited  Story  on  Part- 
nerships 136,  373;  4  Vesey,  Jr.,  396;  17  Ib.  194;  6  Mass.  Rep. 
242;  2  Ld.  Raymond  871;  2  Green's  Rep.  8. 

THE  CHANCELLOR.  On  the  1st  of  August,  1832,  Roswell 
L.  Colt  leased  mill  lot  No.  2,  on  the  upper  canal  at  Paterson, 
with  the  privilege  of  using  a  foot  square  of  water,  to  Caleb 
M.  Godsvin  and  one  John  Benson,  then  and  still  partners, 
under  the  name  and  firm  of  Benson  &  Godwin,  for  twenty- 
one  years,  at  the  rent  of  $1200,  payable  quarter-yearly.  The 
business  of  the  said  partnership  was  the  conducting  of  a  cotton- 
mill  on  the  said  lot,  by  means  of  the  water-power  and  the  use 
of  machinery  in  the  mill.  After  the  making  of  the  lease,  Colt 
conveyed  the  lot,  buildings,  and  privileges  to  the  Society  for 
Useful  Manufactures,  and  at  the  same  time  assigned  to  them  the 
said  lease. 

On  the  6th  of  October,  1834,  Caleb  M.  Godwin,  one  of  the 
partners,  being  indebted  to  the  Mechanics'  Bunk  of  Paterso.i,  in 


MARCH  TERM,  1846.  335 

Receivers  of  Mechanics'  Bank  v.  Godwin, 

$6066,  gave  to  them  his  bond  for  that  sum;  and  to  secure  the 
same,  he,  with  his  wife,  executed  a  mortgage  of  the  same  date, 
to  the  iaid  bank,  on  certain  lots  in  Paterson  and  on  his  interest 
in  the  said  cotton  mill  and  the  machinery  therein. 

The  bill  is  filed  for  the  foreclosure  of  this  mortgage,  and  the 
sale  of  Godwin's  interest  in  the  said  mill  and  machinery,  that 
is  to  say,  of  his  partnership  interest  in  the  said  lease  and  ma- 
chinery. It  prays  for  a  sale  of  the  mortgaged  premises,  and 
that,  from  the  proceeds  of  the  sale,  the  complainants  may  be 
paid  principal  and  interest. 

I  see  no  objection  to  the  relief  prayed  by  this  bill  j  the  mort- 
gagees are  certainly  entitled  to  have  the  mortgage  foreclosed, 
and  the  mortgaged  premises  sold,  that  is,  the  interest  of  the 
partner  Godwin  in  this  partnership  property.  I  do  not  see  that, 
tinder  this  bill  and  the  prayer  of  it,  the  court  have  now  any- 
thing to  do  with  thequestion  what  will  be  the  effect  of  such  sale, 
and  \\hat  interest  the  purchaser  will  acquire.  But  the  com- 
plainants, in  their  bill,  claim  that  they  are  entitled  to  have  the  inte- 
rest of  Godwin  sold  for  the  payment  of  their  mortgage,  free  from 
any  claim  for  rent  accrued  since  the  date  of  their  mortgage ; 
and  the  Society  for  Useful  Manufactures,  to  whom  Colt,  the 
lessor,  conveyed  the  reversion  and  assigned  the  lease,  have  put 
in  an  answer,  stating  that  on  the  1st  of  February,  1840,  (the  bill 
was  filed  in  July,  1840,)  there  was  due  to  them  from  Benson 
and  Godwin,  for  rent  in  arrear,  $3082.19 ;  (there  appears  to 
be  now  due  them  for  rent  in  arrear  upwards  of  $2600 ;)  and 
they  insist,  in  their  answer,  that  the  rent  in  arrear  is  a  lien  xm 
all  the  goods  and  chattels  of  Benson  and  Godwin  on  xthe  demis- 
ed premises,  notwithstanding  the  complainants'  mortgage  ;  and 
that  no  decree  should  be  made  for  the  sale  of  the  said  goods, 
till  the  lessees,  or  the  complainants,  pay  the  society  the  rent  in 
urrear ;  or  that  if  a  decree  be  made,  it  should  be  so  made  that 
the  arrears  of  rent  be  paid  out  of  the  proceeds,  with  all  rent 
which  shall  accrue  up  to  the  removal  of  the  goods  from  the  pre- 
mises ;  and  insisting,  further,  that  if  the  complainants  have, 
umler  the  said  mortgage  from  Godwin  alone,  acquired  any  inte- 
rest in  the  goods,  yet,  inasmuch  as  they  took  the  same  as  secu- 
rity for  an  individual  lebt  of  Godwin,  such  interest  is  subject  to 
the  liability  of  said  goods  for  the  partnership  debte  of  Benson  and 


336  CASES  IN  CHANCERY. 

Receivers  of  Mechanics'  Bank  v.  Godwin. 

Godwin.  The  society  deny  all  knowledge  of  the  complainants' 
mortgage  till  after  the  filing  of  the  bill ;  and  insist  further,  that 
the  mortgaged  property  being  personal,  whatever  conveyance 
thereof  Godwin  made  to  the  complainants  was  unaccompanied 
with  possession,  either  actual  or  constructive,  and  was  without 
any  notice  to  them,  and  void  as  against  them,  they  being  credi- 
tors of  Benson  and  Godwin  ;  and  that  the  complainants  having 
left  the  goods  in  the  possession  and  use  of  Benson  and  Godwin, 
on  the  demised  premises,  without  giving  to  the  society,  the  land- 
lords, any  notice  of  their  claim,  and  having  allowed  Benson 
and  Godwin  to  use  the  property  as  their  own,  and  to  exercise 
acts  of  absolute  ownership  over  it,  it  would  be  unjust  to  the 
society,  if  the  interest  which  Godwin  had  in  the  property  at 
the  time  of  the  assignment  of  the  lease,  should  be  relieved  from 
liability  for  rent  which  has  accrued  to  the  society,  for  the  enjoy- 
ment of  the  demised  premises  in  running  and  using  the  same 
machinery  and  property  thereon.  And  the  society  further  insist 
that  if  the  complainants'  claim  shall  be  decreed  to  be  valid  and 
to  pass  the  title  to  said  machinery  and  goods  out  of  Godwin  to 
the  complainants,  then  the  complainants,  by  keeping  it  on  the 
premises,  have,  for  the  purposes  of  rent,  become  the  assignees 
of  Godwin,  of  the  said  term  in  the  demised  premises,  and  have 
been  and  are  the  tenants  of  the  society  with  the  said  Benson, 
and  have  thus  subjected  the  said  machinery  and  goods  to  lia- 
bility for  rent. 

I  think  the  state  of  these  pleadings  shows  that  the  court  might, 
with  propriety,  decline  now  to  act,  further  than  to  make  a  decree 
for  the  sale  of  the  mortgaged  property,  as  prayed  by  the  bill, 
and  leave  the  parties,  beyond  that,  to  the  operation  and  effect 
of  the  law  applicable  to  the  subject.  Indeed  I  do  not  see  what 
other  decree  the  court  can  made.  Can  we  say  that  the  rent 
shall  be  paid  out  of  the  proceeds  of  the  sale  of  Godwin's  part- 
ner-ship interest  in  these  goods?  What  is  his  interest?  And, 
from  the  liability  of  partnership  property  to  the  payment,  first, 
of  partnership  debts,  how  could  we  say  that  the  rent  should  be 
paid  out  of  Ins  interest  alone,  when  the  interest  of  Benson  -in 
the  same  goods  is  equally  liable  for  the  rent?  On  the  other 
hand,  how  can  we  say,  under  the  prayer  for  the  sale  of  God- 
win's interest  in  these  goods,  which  is  a  partnership  interest. 


MARCH  TERM,  1846.  337 

Receivers  of  Mechanics'  Bank  v.  Godwin. 

subject  to  the  debts  of  the  firm,  and  without  knowing  how  the 
firm  stands,  or  what  debts  they  owe,  or  when  they  accrued, 
order  Godwin's  individual  half"  of  these  goods  to  be  sold,  free 
from  all  debts  of  the  firm,  and  the  proceeds  to  be  applied  to  pay 
the  complainants'  demand  against  Godwin  as  an  individual? 
But  if  it  will  be  of  any  service  to  the  parties,  I  am  willing  to 
express  an  opinion  on  the  questions  which  were  presented  and 
argued  by  the  counsel. 

The  first  ground  taken  by  the  complainants'  counsel  is  that, 
on  the  forfeiture  of  a  mortgage  of  personal  property,  the  mort- 
gagee becomes  the  absolute  owner,  and  may  recover  the  prop- 
erty by  replevin  ;  and  that  as,  in  New  Jersey,  the  property  of  a 
stranger,  though  on  the  demised  premises,  is  not  liable  for  rent, 
the  complainants  are  entitled  to  the  mortgaged  property  in  this 
case  free  from  the  claim  of  rent ;  that  it  is  simply  the  case  of  a 
lending  of  personal  property  by  a  stranger  {o  a  tenant,  and  that 
property  so. lent  is  not  liable  for  rent;  that  the  property  is  not 
that  of  the  tenant,  and  the  landlord,  therefore,  could  not  dis- 
train it. 

This  position  would  not  decide  this  case,  if  it  were  maintain- 
able ;  for  beyond  this  lies  the  question,  what  is  mortgaged  by  a 
mortgage  by  one  partner  of  his  interest  in  the  partnership  goods 
to  secure  1m  individual  debt?  But  I  am  not  prepared  to  admit 
the  correc*ne,'ss  of  the  position.  To  test  it,  we  must  suppose  this 
lease  to  huv<;!  been  made  to  Godwin  alone,  and  the  machinery 
to  have  been  )>ut  in  by  him  alone,  and  to  have  been  afterwards 
mortgaged  tr»  v»he  complainants,  and  to  have  been  permitted  to 
remain  in  th-i  mill,  in  Godwin's  possession  and  use,  for  years 
after  default  oi  payment.  Would  personal  property  so  situated 
be  considered  tLr  property  of  a  stranger,  and  not  liable  for  rent? 
To  consider  our  statute  as  applying  to  a  ease  like  this,  would  be 
fraught  with  most  serious  mischief.  As  respects  the  landlord, 
at  least,  it  would  be  considered  the  property  of  the  tenant. 

But  the  rent,  in  this  case,  is  the  debt  of  the  partnership  of 
Benson  and  Godwin,  and  the  mortgage  is  to  a  separate  creditor 
of  Godwin,  of  Godwin's  interest  in  the  partnership  property. 
The  general  doottine  applicable  to  such  a  state  of  things  was 
admitted  by  the  cc  jnsel  of  the  complainants  ;  but  he  contended 
that  the  interest  s  »  mortgaged  would  only  be  subject  to  the 


338  CASES  i^  CHANCERY. 

Receivers  of  Mechanics'  Bank  v.  Godwin. 

partnership  debts  which  existed  at  the  time  of  the  mortgage.  I 
might  here  say  again  that  the  complainants,  on  taking  a  decree 
to  sell  the  interest  mortgaged,  and  selling  it,  would  put  them- 
selves, if  they  bought,  or  the  purchaser  who  should  buy,  on 
ground  on  which  they  or  such  purchaser-  might  attempt  to 
maintain  this  position  before  the  proper  tribunal  and  between 
the  proper  parties ;  and  I  do  not  feel  called  on  to  express  any 
opinion  about  it.  But  I  am  willing  to  say  that,  as  at  present 
advised,  I  think  the  position  cannot  be  maintained. 

An  absolute  assignment  by  Godwin  of  all  his  interest  in  this 
mill  and  machinery,  would  have  dissolved  this  partnership.  17 
Johns.  Rep.  525.  Did  this  mortgage  dissolve  the  partnership? 
I  apprehend  not;  and  it  certainly  was  not  so  supposed  or  in- 
tended, either  by  Godwin  or  the  complainants;  on  the  contrary, 
the  partnership  and  its  business  had  ever  since  continued,  and 
still  continues,  and  the  property,  Godwin's  interest  in  which 
was  mortgaged,  has  ever  since  remained  in  the  possession  of  the 
partnership,  and  in  their  use,  on  the  demised  premises,  in  their 
partnership  business.  This  brings  the  case  to  the  answer  given 
to  the  first  ground  taken  by  the  complainants'  counsel.  But, 
beyond  this,  the  partnership  has  continued,  and  still  continues, 
and  that  by  the  consent  of  the  mortgagees. 

They  must  be  considered  as  assenting  to  a  continuance  of  the 
partnership  till  they,  by  means  of  this  mortgage,  effect  an  abso- 
lute assignment  of  Godwin's  interest  in  the  property,  and  thereby 
effect  a  dissolution  of  the  partnership.  This  they  have  had  it 
in  their  power  to  do  ever  since  Godwin's  default  in  payment  to 
them;  and  it  would  be  extraordinary  if  they  could  now  demand 
an  account  of  the  partnership  as  it  stood  teu  years  ago,  and  strike 
from  the  debit  side  all  debts  then  existing  against  the  partner- 
ship which  have  since  been  paid,  and  thus  produce  a  balance 
due  Godwin  sufficient  to  satisfy  them. 

My  opinion  is,  that  the  interest  of  Godwin  to  which  the  com- 
plainants will  be  entitled,  will  be  that  which,  on  a  settlement  of 
the  accounts  of  the  partnership,  after  the  dissolution  which  will 
be  effected  by  the  sale  under  the  complainants'  mortgage, 
Godwin  would  be  entitled  to  after  paying  the  debts  of  the  part- 
nership. 

Decree  accordingly. 


MARCH  TERM,  1846.  339 

Tappan  v.  Redfield. 


WILLIAM  TAPPAN  v.  GEORGE  F.  REDFIELD  AND  OTHERS. 

An  authority  to  another  to  execute  for  the  owner,  and  in  his  absence,  a  deed 
for  land,  must  be  by  deed. 

Solomon  Russ,  of  Conklin,  New  York,  and  George  F.  Red- 
field,  of  Perth  Amboy,  New  Jersey,  were,  it  is  alleged,  partn°rs 
in  trade,  in  the  oyster  business.  They  owned,  as  tenants  in 
common,  a  tract  of  land  in  Middlesex  county,  New  Jersey,  of 
twenty  acres,  unconnected  with  the  partnership  business,  and 
Redfield  owned  a  lot  in  Perth  Amboy.  On  the  1st  of  April, 
1836,  while  Russ  was  in  New  York,  at  his  residence,  Redfield 
executed,  in  the  partnership  name  of  Russ  &  Redfield,  a  bond 
to  the  complainant,  conditioned  for  the  payment,  by  Solomon 
Rnss  and  George  F.  Redfield,  of  $400,  with  interest,  in  one 
year ;  and  to  secure  the  payment  thereof,  Redfield  also  execu- 
ted, in  the  name  of  Russ  &  Redfield,  a  mortgage  to  the  com- 
plainant o.n  the  said  two  parcels  of  land,  Red  field's  wife  joining 
in  the  mortgage.  The  certificate  of  acknowledgment  states 
that  George  F.  Redfield,  of  the  firm  of  Russ  &  Redfield,  and 
Ann  Maria  his  wife,  appeared,  &c.,  and  acknowledged  that 
they  signed,  sealed  and  delivered  the  mortgage  as  their  act  and 
deed. 

The  bill  is  filed  for  the  foreclosure  of  this  mortgage,  and  a 
decree  is  prayed  for  the  sale  of  the  whole  twenty-acre  tract. 

To  establish  the  mortgage  as  against  Russ,  the  complainant 
relies  on  the  allegation,  and  the  proof  he  has  ottered  to  sustain 
it,  that  when  Russ  was  at  Amboy,  a  few  months  before  the 
giving  of  the  bond  and  mortgage,  he  and  Redfield  agreed  that 
money  should  be  borrowed  for  the  use  of  the  firm,  from  the 
complainant,  on  bond  and  mortgage ;  and  that  Russ,  at  that 
time,  verbally. authorized  Redfield  to  sign  the  bond  and  mort- 
gage for  him. 

H.  V.  Speer,  for  the  complainant. 
Leupp,  for  the  defendant  Russ. 


340  CASES  IN  CHANCERY, 

Runyon  v.  Brokaw. 

THE  CHANCELLOR.  It  is  not  necessary  to  inquire  whether 
this  verbal  authority  is  sufficiently  proved;  or  whether,  if  the 
authority  was  sufficient,  the  mortgage  was  properly  executed 
under  it.  The  mortgage  cannot  be  valid  as  against  Russ.  A 
freehold  interest  in  land  cannot  pass  by  parol.  2  Black.  Com. 
297,  312;  12  Johns.  Rep.  73.  And  an  authority  from  the  own- 
er to  another  to  execute  for  him,  and  in  his  absence,  a  deed  for 
such  an  interest,  must  be  by  deed.  1  Wend.  424 ;  5  Munro  188  ; 
Com.  Dig.}  (Attorney,)  ch.  L,  65. 


EPHRAIM  RUNYON,  JR.,  v.  CALEB  C.  BKOKAW  ET  AL. 

R.  and  B.  were  partners  in  two  establishments,  one  for  the  tailoring  business 
and  the  other  for  merchandizing.  They  dissolved,  and  submitted  the  matters 
in  difference  between  them  to  arbitration,  and  entered  into  mutual  submission 
bonds,  with  sureties.  The  arbitrators  awarded  that  R.  should  pay  the  debts 
of  the  tailoring  business,  and  pay  B.  $468.10  ;  and  that  B.  should  pay  the 
debts  of  the  merchandising  business,  in  full  of  all  demands  by  either  against 
the  other.  After  the  award,  two  executions  on  judgments  recovered  against 
R.  and  B.,  for  debts  growing  out  of  the  merchandising  business,  were  levied 
on  the  goods  and  lands  of  R.  and  B.,  respectively.  R.  obtained  an  injunction 
against  selling  his  lands  before  the  lands  of  B.  It  appeared  by  the  answer, 
that  R.  had  not  paid  to  B.  the  $468.10.  On  motion  to  dissolve  the  injunction, 
an  order  was  made  that  R.  pay  the  $468.10  on  the  executions,  within  thirty 
days,  or  that  the  injunction  be  dissolved. 


On  the  4th  of  January,  1845,  Ephraitn  Runyon,  Jr.,  and 
Caleb  C.  Brokaw,  being  partners  in  two  separate  establishments, 
one  for  the  tailoring  business  and  the  other  for  merchandising, 
submitted  the  matters  in  difference  between  them  to  arbitration, 
and  entered  into  mutual  submission  bonds,  with  sureties. 

On  the  1st  of  J^arch,  1845,  the  arbitrators  published  their 
award,  by  which  it  was  awarded  that  Runyon  should  pay  the 
debts  which  had  grown  out  of  the  tailoring  business  and  exon- 
erate Brokaw  therefrom  ;  and  that  Brokaw  should  pay  the  debts 
which  had  grown  out  of  the  merchandising  business  and  exon- 
erate Runyon  therefrom ;  and  that  Runyon  should  pay  Bro- 


MARCH  TERM,  1846.  341 

Runyon  v.  Brokaw. 

kaw,  on  or  before  the  first  of  June  then  next,  $468.10,  with 
the  interest  thereon  from  March  1st,  1844,  in  full  of  ali  de- 
mands by  either  against  the  other,  to  the  date  of  the  submis- 
sion. 

On  the  25th  of  February,  1845,  two  judgments  were  recov- 
ered, in  the  Supreme  Court,  against  Runyon  and  Brokaw;  one 
for  $449.69,  damages  and  costs,  the  other  for  $379.64,  dam- 
ages and  costs,  on  which  judgments  executions  were  issued, 
and  levied,  on  the  3d  of  March,  1845,  on  the  goods  and  lands 
of  Runyon  and  Brokaw,  respectively.  The  debts  for  which  the 
judgments  were  recovered,  grew  wholly  out  of  the  business  of 
merchandising,  which,  by  the  award,  were  to  be  paid  by 
Brokaw. 

On  the  12th  of  April,  1845,  Brokaw  made  an  assignment, 
under  the  act,  to  John  Burke,  for  the  benefit  oft  his  creditors. 
There  is  no  partnership  property.  Runyon  filed  his  bill,  stating 
that  he  lias  paid  all  the  debts  required  by  the  award  to  be  paid 
by  him  ;  that  the  property  of  Brokaw,  assigned  as  aforesaid,  is 
insufficient  to  pay  his  debts;  that  Brokaw's  surety  on  the  arbi- 
tration bond  given  by  him  is  insolvent;  that  the  sheriff  sold  his, 
the  complainant's,  personal  property,  and  applied  the  proceeds 
thereof,  $113.43,  towards  satisfaction  of  the  said  executions; 
that  the  personal  property  of  Brokaw  was  sold  on  prior  execu- 
tions and  exhausted  thereby;  that  a  small  part  of  the  real  es- 
tate of  Brokaw  was  sold  by  the  sheriff,  and  after  satisfying  pri- 
or executions  a  balance  of  $53  remained  in  his  hands,  to  be 
applied  towards  satisfying  the  two  executions  against  Runyon 
and  Brokaw.  The  bill  charges  that  the  real  property  of  Bro- 
kaw levied  on  is  more  than  sufficient  to  pay  the  two  executions ; 
that  the  sheriff  has  advertised  the  real  property  of  both  Runyon 
and  Brokaw,  under  the  two  executions ;  and  that  the  sheriff, 
by  the  direction  of  the  plaintiffs  in  the  executions,  or  of  Brokaw 
and  his  assignee,  intends  to  sell  the  real  estate  of  the  complain- 
ant, Runyon,  before  selling  that  of  Brokaw.  The  bill  prays  an 
injunction,  restraining  the  sheriff  from  selling  the  complainant's 
real  estate  before  selling  that  of  Brokaw,  and  applying  the  pro- 
ceeds thereof  to  the  payment  of  the  executions ;  and  that  the 
complainant  may  be  repaid  the  amount  produced  by  the  sale  of 
his  goods.  The  injunction  was  granted. 


312  CASES  IN  CHANCERY. 

Rnnyon  v.  Brokaw. 

The  defendants  put  in  their  joint  and  several  answer.  It 
appears  by  the  bill  and  answer,  that  Runyon  has  never  per- 
formed that  part  of  the  award  which  required  him  to  pay  to 
Brokaw  $468.10.  Burke,  Brokaw's  assignee,  answering  for 
himself,  says  that  on  the  2d  June,  1845,  he  called  on  the  com- 
plainant for  that  money,  and  told  him  that  on  its  being  paid, 
he  would  immediately  apply  it  to  the  executions,  and  the  com- 
plainant refused.  That  he  then  asked  the  complainant  to  pay 
the  amount  to  the  sheriff,  to  be  applied  to  the  said  executions, 
and  that  the  complainant  refused;  and  that  on  the  llth  No- 
vember, 1845,  he  tendered  to  the  complainant  his  bond  of  in- 
demnity against  the  said  judgments  and  executions,  and  de- 
manded payment  of  the  balance  of  said  $468.10,  after  deduct- 
ing therefrom  the  amount  of  the  said  sales  of  the  complainant's 
personal  estate  and  that  the  complainant  still  refused  to  pay. 

The  defendants,  Brokaw  and  Burke,  answering  for  themselves, 
State  that  they  think  and  believe  that  the  circumstances  of  the 
complainant's  surety  in  his  arbitration  bond  are  straitened  ;  and 
that  they  have  understood  and  believe  that  the  complainant, 
prior  to  the  said  judgment,  mortgaged  his  real  estate  so  levied 
on  for  $850 ;  and  that  since  the  said  judgments,  he  has  again 
mortgaged  it  for  $730,  and  that  it  is  not  worth  more  than 
$1600.  And  the  said  defendants  say  there  are  no  debts  against 
the  said  Runyon  and  Brokaw,  arising  out  of  their  said  business 
of  merchandising,  except  the  said  two  judgments  and  execu- 
tions, and  it  is  not  charged  in  the  bill  that  there  is  any  other. 

On  this  answer  a  motion  was  made  to  dissolve  the  injunc- 
tion. 

W.  T/iompson,  in  support  of  the  motion,  cited  1  John.  Ch.  R. 
211,  244. 

A.  Whitehead,  contra,  cited  2  John.  Ch.  R.  554,  561 ;  4  Ibid. 
123 ;  1  Hilt's  Ch.  R.  351  j  2  Mad.  434. 

THE  CHANCELLOR.  The  principle  on  which  relief  by  in- 
junction was  sought  by  this  bill  was,  that  by  the  effect  of  the 
award  the  debts  for  which  the  two  judgments  were  recovered 
and  executions  issued  became,  as  between  the  complainant  and 


MARCH  TERM,  1846.  3!3 


Hopper  v.  Sisco. 


•Jrokaw,  the  personal  debts  of  Brokavv,  and  that  tliH 

•nt  should   he  considered  as  only  surety  therefor ;  and   that,  in 

this  state  of  things,  Brokaw's  property  should  be  first  sold. 

Is  the  ease  within  the  principle  contended  for  ?  Is  it  true  that 
Jay  the  award  itself,  without  performance  on  the  part  of  Runyon, 
Brokaw  became  the  principal  debtor,  and  Runyon  only  .secu- 
rity? I  think  not.  The  award  was  an  entirety,  each  part  de- 
pending on  the  other  parts.  Runyon  was  to  pay  the  debts  of 
/.he  tailoring  business,  and  to  pay  Brokaw  $468.10,  and  Brokaw 
was  to  pay  the  debts  of  the  merchandising  firm.  Runyon  has 
not  performed  his  part,  and  is  not  in  a  position  to  ask  the  equi- 
table interposition  of  the  court ;  and  particularly  as  that  inter- 
position would  subject  Brokaw's  assignee  and  creditors  to  the 
risk  of  loss. 

The  most  the  court  feels  willing  to  do,  is  to  make  an  order 
giving  the  complainant  thirty  days  within  which  to  pay  to  the 
sheriff,  towards  payment  of  the  executions,  the  balance  of  the 
$4tf8.10,  and  interest  from  the  date  of  the  submission,  after  de- 
ducting the  amount  of  the  proceeds  of  sale  of  the  complainant's 
personal  property ;  but  that,  in  default  of  such  payment,  the 
injunction  be  dissolved. 

Order  accordingly. 


ANDREW  P.  HOPPER  v.  JOHN  SISCO  ET  AL. 

1.  A  recovery  will  not  be  allowed  on  a  case  proved  if  it  differ  essentially 
from  the  case  made  by  the  bill. 

2.  H.  filed  a  bill  against  the  devisees  and  executors  of  S.,  deceased,  for  tie 
foreclosure  of  a  mortgage  given  by  S.,  in  his  lifetime,  to  H.,  in  the  ordinary 
form,  to  secure  a  bond  conditioned  for  the  payment  of  $1200.     The  defend- 
ants set  up  in  their  answer,  that  the  bond  and  mortgage  were  given  as  collat- 
eral security  for  certain  judgments  recovered  by  different  persons  against  S., 
which  had  been  assigned  to  IT.,  and  that  the  said  judgments,  after  (he  giving 
of  the  bond  and  mortgage,  were  satisfied  by  sales,  on  executions,  of  other  pro- 
perty of  S.     Proofs  were  taken  by  the  defendants  in  support  of  the  defence. 
H.  then  proved  and  exhibited  several  receipts  for  moneys  paid  by  him  for  8., 
subsequent  lathe  bond  and  mortgage,  on  executions  on  judgments  of  different 


844  CASES  IN  CHANCERY. 

Hopper  v.  Sisco. 

persons  against  S.,  two  of  which  judgments  were  assigned  to  H.,  and  a  receipt 
from  the  holder  of  a  due  bill  given  by  S.,  acknowledging  the  payment  thereof 
by  H.,  in  all  amounting  to  $301.04.  Held,  that  under  the  pleadings  a  decree 
for  sale  to  raise  these  sums  could  not  be  made. 


On  the  5th  of  July,  1841,  Richard  D.  Sisco  became  bound  to 
Andrew  P.  Hopper  in  a  bond  conditioned  for  the  payment  of 
$1200,  in  one  year,  with  interest,  and  on  the  same  day,  with  his 
wife,  executed  and  delivered  to  the  said  Hopper  a  mortgage  on 
a  tract  of  land,  to  secure  the  payment  of  the  bond.  On  the  5th 
of  October,  1842,  Sisco  made  his  will,  by  which  he  devised  the 
said  land  to  his  three  sons,  to  be  equally  divided  among  them  ; 
and  on  the  5th  of  November,  1842,  Sisco  died.  On  the  25th 
of  November,  1843,  Hopper  filed  a  bill  in  the  ordinary  form  of 
a  foreclosure  bill,  against  the  devisees,  widow  and  executors  of 
Sisco,  praying  that  the  defendants  may  be  decreed  to  pay  the 
said  $1200,  and  the  interest  thereon,  by  a  short  day,  and  that 
in  default  thereof,  they  may  be  foreclosed,  &c.,  and  the  premises 
be  decreed  to  be  sold,  and  that  from  the  avails  of  the  sale  the 
complainant  may  be  paid  the  full  amount  of  the  said  principal 
sum  and  the  interest  thereon. 

To  this  bill  the  defendants  put  in  an  answer,  stating  that  this 
bond  and  mortgage  were  given  as  collateral  security  for  certain 
judgments  obtained  by  different  persons  against  Sisco,  which 
had  been  assigned  to  the  complainant,  and  which,  after  the 
giving  of  the  bond  and  mortgage,  were  satisfied  by  sales,  on  ex- 
ecutions issued  thereon,  of  other  property  of  Sisco.  Proofs 
were  taken  by  the  defendants  in  support  of  the  defence. 

The  complainant  then  proved  and  exhibited  five  several  re- 
ceipts; one  from  J.  J.  Vanderbeck,  sheriff  of  Passaic,  dated 
July  1st,  1841,  acknowledging  the  receipt  from  Hopper,  for 
Sisco,  of  $166.91,  in  full  for  debt  and  costs  on  a  suit  of  Warner 
against  Sisco;  one  from  Jarnes  Speer,  dated  July  12th,  1841, 
endorsed  on  a  due  bill  given  by  Sisco  to  said  Speer,  acknowl- 
edging the  receipt  from  Hopper  of  $18.41,  in  full  of  the  said 
due  bill;  one  from  R.  S.  Speer,  late  sheriff,  dated  November 
lid,  1841,  acknowledging  the  receipt  from  the  complainant  of 
$20.75,  in  full  of  an  execution  in  favor  of  A.  Ryerson,  against 
Sisco  j  one  from  Nathaniel  Townseud,  constable,  dated  July 


MARCH  TERM,  1846.  345 

Hopper  v.  Sisco. 

7th,  1841,  acknowledging  the  receipt  from  the  complainant  of 
$41.28,  in  full  for  a  judgment  of  Samuel  S.  Townsend  against 
Sisco,  assigned  to  the  complainant;  and  one  from  D.  Roe, 
dated  July  7th,  1841,  acknowledging  the  receipt  from  the  com- 
plainant of  $53.69,  in  full  of  a  judgment  in  favor  of  C.  and  D. 
Warner,  against  Sisco,  which  had  been  assigned  to  Roe,  and 
which  Roe  h;id  assigned  to  the  complainant. 

The  complainant's  counsel,  on  the  argument,  contended  that 
a  decree  might  be  made,  under  the  pleadings,  for  the  sale  of  the 
mortgaged  premises  to  pay  these  sums. 

E.  H.  Whelpley,  for  the  complainant. 
D.  Barkalow,  for  the  defendants. 

THE  CHANCELLOR.  The  complainant  cannot  be  permitted 
to  abandon  the  case  made  by  his  bill,  and  make  another  case  by 
his  proofs.  I  do  not  know  that  there  is  any  sufficient  reason  to 
believe  he  would'  have  abandoned  the  case  made  by  the  bill,  had 
it  not  been  for  the  proofs  made  in  defence.  Be  that  as  it  may, 
a  decree  must  conform  to  the  case  made  by  the  bill. 

The  merits  of  the  case,  which  this  complainant  has  attempted 
to  make  by  his  proofs,  are  not  presented  to  the  court  by  this 
bill  j  and  to  allow  a  complainant  to  depart  from  the  ground  of 
relief  taken  in  his  bill,  and  to  make  another  case  in  his  proofs, 
would  be  against  the  good  sense  of  pleading,  which  requires; 
that  every  material  allegation  should  be  put  in  issue,  that  the' 
parties  may  be  apprised  of  the  matters  iu  controversy,  and  be 
prepared  to  meet  them  by  testimony. 

A  recovery  cannot  be  allowed  on  a  case  proved,  if  it  differ 
essentially  from  that  alleged  by  the  bill.  5  Munford  314 ;  6 
Johns.  Rep.  564;  3  Rand.  263 ;  2  Bibb  4,  26. 

The  bill  must  be  dismissed,  with  costs,  but  without  prejudice 
to  the  right  of  the  complainant  to  file  a  new  bill,  if  he  thinks 
he  can  maintain  a  suit  on  a  case  differently  stated. 

Bill  dismissed. 

CITED  in  Van  Riper  v.  Claxton,  1  Stockl.  304. 

VOL.  i.  Y 


346  CASES  IN  CHANCERY. 


Moore  v.  Degraw. 


JAMES  MOOBE  v.  JOHN  DEGRAW  ET  AL. 

1.  A  mortgagee  in  possession  personally  is  chargeable  with  reasonable  rent ; 
and  a  subsequent  mortgagee  is  entitled  to  the  aid  of  the  court  in  having  such 
rent  ascertained  and  applied  in  reduction  of  the  prior  mortgage. 

2.  Decree  opened,  under  the  circumstances,  after  enrollment,  and  on  motion, 
on  application  of  a  subsequent  mortgagee,  for  the  purpose  of  charging  the 
complainant,  to  whom  a  prior  mortgage  had  been  assigned  when  he  was 
tenant  of  the  premises  under  the  mortgagor,  and  who  filed  a  bill  to  foreclose 
the  prior  mortgage,  and  remained  in  possession  in  the  meantime,  with  rea- 
sonable rent. 

John  Degraw  had  given  to Degraw  three  mortgages 

on  a  house  and  lot,  and  to —  Vannuis  a  fourth  and  subse- 
quent mortgage  thereon.  After  the  giving  of  all  the  mortga- 
ges, and  on  the  1st  of  May,  1843,  James  Moore  rented  the 
premises  from  the  mortgagor,  and  occupied  them  for  the  year, 
and  paid  the  year's  rent,  and  continued  to  occupy  them,  as  the 
tenant  of  the  mortgagor,  on  an  actual  or  implied  letting,  for 
another  year.  On  the  28th  of  March,  1845,  about  a  month 
before  the  end  of  the  second  year  of  his  tenancy,  the  three  first 
of  the  said  four  mortgages  were  assigned  to  the  said  James 
Moore,  and  he  thereupon  filed  a  bill  of  foreclosure  thereon, 
making  Vannuis,  the  subsequent  mortgagee,  a  party  defendant. 

The  suit  progressed,  and  a  decree  was  made  for  the  sale  of 
the  premises,  to  satisfy  the  mortgages ;  James  Moore,  the  com- 
plainant, in  the  meantime,  remaining  in  possession. 

Vannuis  was  absent  from  the  state  when  a  subpoena  directed 
to  him  was  served,  by  being  left  at  his  residence,  and  did  not 
return  until  a  few  days  before  the  beginning  of  the  term  at 
which  the  decree  was  taken.  The  property  was  sold  under  the 
decree  for  $1500,  and  the  proceeds  of  the  sale  were  not  suffi- 
cient to  satisfy  all  the  mortgages;  and  the  money  was  in  the 
hands  of  the  sheriff. 

Vannuis  applied,  by  motion,  on  notice  and  affidavits,  for  the 
opening  of  the  decree  and  the  master's  report,  and  for  leave  to 
put  in  his  bond  and  mortgage  before  the  master,  and  for  in- 
struction to  the  master  to  charge  Moore,  the  complainant,  with 
the  rents  and  profits  of  the  premises  from  the  beginning  of  the 


MARCH  TERM,  1846.  317 

Moore  v.  Degraw. 

second  year  of  his  tenancy  to  the  time  of  the  sale  of  the  pre- 
mises under  the  decree,  in  reduction  of  the  amount  of  the  mort- 
gages held  by  Moore. 

The  motion  was  resisted,  and  affidavits  read  in  opposition. 

Blauvelt,  in  support  of  the  motion. 
G.  Ad.ra.in,  contra. 

THE  CHANCELLOR.  One  ground  on  which  the  motion  is 
resisted,  is  an  alleged  agreement  between  the  mortgagor  and 
the  complainant,  at  the  time  the  mortgages  prior  to  that  of 
Vannuis  were  assigned  to  the  complainant,  that  if  the  complain- 
ant, (who  was  then  in  possession  of  the  property  as  tenant  of 
the  mortgagor,)  would  '  purchase  those  mortgages  from  the  per- 
son who  then  held  them,  (a  son  of  the  mortgagor,)  the  com- 
plainant was  to  pay  no  rent  for  the  property,  and  was  to  con- 
tinue in  possession  of  it  until  it  was  sold. 

These  mortgages  were  assigned  to  Moore  on  the  28th  of 
March,  1845.  There  was  then  due  on  them  about  $1360  ; 
they  were  assigned  for  $1000. 

There  is  something  singular  in  the  idea  of  a  mortgagor's 
agreeing  that  if  a  person  will  buy  the  mortgage  from  the 
mortgagee,  he  may  take  possession  of  the  mortgaged  premises, 
and  hold  them  free  of  rent  until  they  are  sold  under  the  mort- 
gage, and  that  the  interest  on  the  mortgage  should  still  con- 
tinue to  run  against  him.  I  can  see  no  inducement  or  conside- 
ration for  such  an  agreement.  It  was  argued  that  the  assignor 
of  the  mortgages  was  a  son  of  the  mortgagor,  and  that  the  sale 
of  the  mortgages  might  have  been  a  benefit  to  him,  and  that 
that  benefit  might  have  been  the  consideration  moving  the 
mortgagor.  The  fact  that  the  property,  within  about  six 
months  thereafter,  sold  for  $1500,  is  sufficient  to  induce  the 
court  to  pause,  before  lending  its  aid  to  carry  out  such  an 
agreement,  to  the  prejudice  of  a  subsequent  mortgagee.  Be- 
sides, the  evidence  is  not  sufficient  to  establish  such  an 
agreement.  It  certainly  does  not  show  that  the  mortgagor 
Knew  what  his  sou  was  to  get  for  the  mortgages.  The  case 
then,  must  be  decided  as  if  no  such  agreement  existed. 


CASES  IN  CHANCERY. 


Moore  v.  Degraw. 


A  mortgagee  in  possession  by  a  tenant  is  accountable  for  the 
rents  received ;  and  if  in  possession  personally  is  chargeable 
with  reasonable  rent;  4  Kent  166;  2  J.  J.  Marshall  465; 
16  Pick.  46  ;  5  Paige  9.  And  a  subsequent  mortgagee  is  en- 
titled to  the  aid  of  the  court  in  having  these  rents  applied  to  the 
reduction  of  a  prior  mortgage  :  Hopkins  579. 

From  what  time  is  the  complainant  to  be  considered  as  mort- 
gagee in  possession  ?  Before,  and  at  the  time  he  bought  the 
mortgages,  he  was  tenant  of  the  premises  under  the  mortgagor, 
and  about  eleven  months  of  the  current  year  of  his  tenancy 
had  elapsed.  Perhaps  he  should  be  considered  as  tenant  dur- 
ing that  year,  and  after  that  as .  mortgagee  in  possession ;  but 
this  is  not  important,  in  the  view  I  take  of  this  case.  At  the 
end  of  that  year  he  was  indebted  to  the  mortgagor  for  the 
year's  rent,  and  could  have  given  credit  for  it  on  his  mortgages. 
The  mortgagor  never  demanded  it,  and  must  be  considered  as  as- 
senting to  having  it  so  applied,  if  assent  were  necessary. 

It  is  not  supposable  that  if  the  mortgagor  had  demanded  it 
Moore  would  have  paid  it,  when  he  held  the  bonds  and  mort- 
gages of  the  mortgagor,  which  were  due,  to  much  more  than 
the  amount.  I  am  of  opinion,  therefore,  that  the  subsequent 
mortgagee  is  entitled  to  have  that  year's  rent,  and  a  reasonable 
rent  thereafter  to  the  time  of  the  sale,  credited,  in  reduction  of 
the  amount  to  be  raised  in  satisfaction  of  the  complainant's 
mortgages :  Hopkins  579. 

It  is  objected  that  the  decree  being  enrolled,  the  application 
is  too  late,  in  any  shape ;  and  that  if  not  too  late,  it  should  not 
have  been  by  motion,  but  by  petition. 

It  appears  by  the  depositions  that  shortly  after  Vannuis'  re- 
turn from  Mobile,  (whither  he  had  gone  before  the  commence- 
ment of  the  suit,)  and  a  few  days  before  the  beginning  of  the  term 
at  which  the  decree  was  taken,  he  called  on  the  complainant's 
solicitor,  who  told  him  he  might  put  in  an  answer  if  he  pleased ; 
but  that  Moore's  mortgages  were  prior  to  his,  and  that  all  over 
Moore's  claim  would  be  paid  to  him.  Under  these  circumstan- 
ces I  cannot  deny  him  relief  against  the  omission  of  the  com- 
plainant to  make  proper  credits  on  his  mortgages;  and  I 
think  the  application  for  relief  may  be  by  motion ;  3  John.  Ch. 
JR.  415. 


MARCH  TERM,  1846.  319 

Adamson  v.  Ayres. 

The  decree  and  the  master's  report  will  be  opened,  and  leave 
given  to  the  defendant  Vannuis  to  put  in  his  bond  and  mort- 
gage before  the  master,  and  the  master  will  be  instructed  to 
charge  the  complainant  with  the  rents,  as  above  stated. 

Order  accordingly. 

CITED  in  Wyckof  v.  Combs,  I  Stew.  41. 


SUSAN  ADAMSON  v.  DAVID  AYRES,  EXECUTOR  OF  SAMUEL 
ADAMSON,  DECEASED,  ET  AL. 

1.  A.,  by  his  will,  provided  that  his  wife  should  have  her  lawful  right  of  dower 
out  of  his  estate;  that  the  executor  should  sell  and  dispose  of  all  his  estate, 
both  real  and  personal ;  that  his  debts  be  paid;  that  his  brother  John  have 
$500,  his  brother  James,  $100,  and  that  the  rest  and  residue  of  his  estate  be 
divided  between  his  two  sons. 

2.  On  bill  filed  by  the  widow,  stating,  among  other  things,  instructions  given 
by  A.  to  the  person  who  drew  the  will,  so  to  draw  it  as  to  give  her  her  lawful 
third  of  the  personal  property,  and  the  use  of  a  third  of  his  lands  for  life, 
and  demurrer  to  the  bill,  it  was  held  that  the  widow  was  entitled  to  her  law- 
ful third  of  the  personal  estate. 

3.  It  was  said  by  the  Chancellor,  that  the  situation  of  the  estate  as  to  the 
comparative  amounts  of  realty  and  personalty  might  be  shown,  to  influence 
the  construction  of  the  will. 


The  bill  states  that  Samuel  Adamson  died  in  June,  1840, 
seized  of  real  estate  of  the  value  of  $2000,  and  possessed  of 
personal  property  of  the  value  of  $7000,  having  first  made 
and  published  his  last  will  and  testament,  dated  March  5th, 
1840,  as  follows:  "1st.  It  is  my  will  that  my  beloved  wife, 
Susan,  have  her  lawful  right  of  dower  out  of  my  estate.  2d. 
That  my  executor  shall,  as  soon  as,  &c.,  sell  and  dispose  of  all 
my  estate,  both  real  and  personal,  and  the  proceeds  thence 
arising  to  be  disposed  of  as  follows,  viz. — first,  it  it  my  will 
that  all  my  just  debts  and  funeral  expenses  be  duly  paid  ;  sec- 
ond, J  give  and  bequeath  to  ray  brother,  John  Adamson,  $500 ; 
third,  to  my  brother,  James  Adamson,  $100,  on  condition  that 
he  shall  not  bring  any  account  against  my  estate:  if  he  do,  he 
is  to  forfeit  the  above  legacy;  (fourth  and  fifth  immaterial;^ 
sixth,  the  rest  and  residue  of  my  estate  I  give  and  bequeath  to 


350  CASES  IN  CHANCERY. 

Adamson  v.  Ayres. 

my  two  sons,  to  be  divided  equally  between  them  ;"  and  ap- 
pointed David  Ayres  executor  of  his  will  and  guardian  of  his 
two  sons,  they  being  minors. 

The  bill  states  that  the  testator,  being  a  farmer,  and  alto- 
gether uninformed  as  to  the  correct  mode  of  drawing  wills,  pro- 
cured the  said  David  Ayres  to  draw  the  said  will  for  him,  and 
that  Ayres  accordingly  undertook,  not  only  to  act  as  the  aman- 
uensis of  the  testator,  but  also  to  give  such  legal  counsel  and 
advice  as  might  be  suggested  by  the  subject,  and  to  give  to  the 
intentions  of  the  testator  such  form  and  expression  as  should  be 
least  subject  to  misapprehension  or  doubt.  And  that  the  testa- 
tor, on  that  occasion,  and  immediately  before  the  drawing  of 
the  will  by  Ayres,  asked  Ayres  what  portion  of  his  property, 
real  and  personal,  his  widow  would  be  entitled  to  by  law,  if  he, 
the  testator,  should  die  without  making  a  will,  and  that  Ayres, 
in  reply,  told  him  that  she  would  be  entitled,  by  law,  to  one- 
third  of  all  his  personal  property,  aud  to  the  use  of  a  third  part 
of  his  real  estate  for  her  life.  That  the  testator,  on  receiving  this 
answer,  directed  Ayres  so  to  write  the  will  that  his  wife  should 
have  such  portion  of  his  property,  remarking,  at  the  same 
time,  that  a  third  of  his  personal  estate,  aud  the  use  of  a  third 
of  his  real  property,  would  be  sufficient  for  his  wife;  and  that 
the  testator,  in  the  same  conversation,  in  expressing  his  intent 
with  respect  to  a  provision  for  his  wife,  directed  Ayres  to  write 
the  will,  giving  her  her  lawful  right  of  dower  out  of  his  estate. 
That  Ayres,  though  more  accustomed  to  such  business  than 
the  testator,  had  but  a  limited  knowledge  therein,  being  unedu- 
cated in  the  law,  and  was,  as  well  as  the  testator,  under  the 
impression  and  belief  that  the  phrase,  "  lawful  right  of  dower 
out  of  my  estate,"  was  a  form  of  expression  that  would  convey 
the  meaning  of  the  testator,  and  would  convey  the  idea  that  it 
was  the  testator's  intention  that  his  widow  should  receive  and 
be  endowed  of  such  portion  of  his  estate,  real  and  personal,  as 
she  would  have  had  a  lawful  right  to  had  he  died  intestate; 
and  that  Ayres,  influenced  by  these  impressions,  and  under  the 
direction  of  the  testator  as  to  his  wishes,  introduced  into  the  will 
the  said  phrase,  "  lawful  right  of  dower  out  of  my  estate."  The 
bill  further  states  that,  after  the  making  of  the  will,  the  testa- 
tor frequently,  in  conversation  with  divers  persons,  and,  among 


MARCH  TERM,  1846.  351 


Adamson  v.  Ayres. 


others,  with  some  of  the  witnesses  to  the  will,  stated  that  he 
had  given  his  wife  the  third  of  all  his  property,  and  had  left  her 
in  the  same  situation  she  would  have  been  in  if  he  had  died 
without  making  a  will  j  and  that  he  thought  that  would  be 
sufficient  for  her. 

The  bill  prays  that  the  defendant,  David  Ayres,  executor,  &c., 
may  be  decreed  to  pay  the  complainant  a  third  of  the  residue 
of  the  personal  estate,  after  paying  the  debts,  funeral  and  tes- 
tamentary expenses. 

The  defendants  demurred  to  the  bill. 

J.  P.  Bradley,  in  support  of  the  demurrer,  cited  TalboCs 
Cftses  240;  Fonb.  Eq.,  Book  I,  eh.  3,  §  11,  and  note  O;  3 
Chan.  Cases  133 ;  2  Edwards  139,  146. 

F.  T.  -Frelinffhuysen,  contra,  cited  Ram.  on  Wills  54 ;  1  Bur- 
rows 271 ;  1  Bro.  Ch.  474;  2  P.  Wms.  135 ;  1  Mason  10;  4 
Vesey  437  ;  2  Jac.  and  Walk.  205  ;  1  Ves.,  8r.,  127. 

THE  CHANCELLOR.  The  testator  declares  it  to  be  his  will 
that  his  beloved  wife  have  her  lawful  right  of  dower  out  of 
nis  estate;  that  his  executor  sell  and  dispose  of  all  his  es- 
tate, both  real  and  personal ;  that  his  debts  be  paid  ;  that  his 
brother  John  have  $500,  and  his  brother  James  $100 ;  and 
that  the  rest  and  residue  of  his  estate  be  divided  between  his  two 
sons. 

It  is  contended  on  the  part  of  the  defendants,  that  under  this 
will,  matters  stand,  in  reference  to  the  widow,  only  in  the  con- 
dition in  which  they  would  have  stood  if  the  wife  had  not  been 
at  all  mentioned  in  the  will  ;  that  as  in  law  parlance  "dower" 
relates  only  to  lands,  we  must  substitute  the  word  "  lands  "  for 
the  word  "  estate,"  and  read  the  clause  in  which  the  wife  is  men- 
tioned thus:  "I  will  that  my  wife  have  her  lawful  right  of 
dower  out  of  my  lands." 

If  the  decedent  had  made  no  will,  the  widow  would  have 
had  her  lawful  thirds  in  both  the  real  and  personal  estate.  Did 
the  testator  intend,  by  making  the  will,  to  cut  her  off  from  iho 
personal  estate?  If  he  d'd,  he  had  only  to  omit  to  mention  her 


352  CASES  IN  CHANCERY. 

Adamson  v.  Ayres. 

name  in  the  will,  framed  as  it  is  in  other  respects.  But  he  says 
she  shall  have  her  lawful  right  of  dower  out  of  his  estate.  "  Es- 
tate "  embraces  both  real  and  personal  "property.  We  are  asked 
to  substitute  the  word  "  lands  "  for  the  word  "  estate."  This 
would  certainly  relieve  the  will  from  all  difficulty  of  construction, 
but  it  would  render  the  whole  clause  useless  ;  and  it  would  leave 
no  object  or  motive  in  the  testator  for  introducing  it,  but  that  of 
putting  on  the  face  of  the  will  a  clear  intention  of  cutting  the 
wife  off  from  all  interest  in  the  personal  estate.  The  will 
shows  no  such  intention,  but  a  contrary  intention  ;  and  so  it  was 
admitted  on  the  argument.  The  word  "dower,"  as  used  in  this 
will,  cannot  be  permitted  to  control  the  whole  clause  for  the 
purpose  of  excluding  the  widow,  against  the  intention  of  the  tes- 
tator, from  the  right  which  the  law  would  give  her  in  the  per- 
sonal property.  The  word  "  estate"  should  rather  govern  or  in- 
fluence the  construction  of  the  clause  in  aid  of  that  intention. 
The  clause  being  useless,  if  it  be  supposed  to  be  confined  to  lands, 
we  ought  rather  to  suppose  it  was  introduced  for  a  purpose,  and 
that  a  beneficial  one  to  the  widow. 

If  it  be  said  that  the  substitution  of  the  word  "  lands  "  for  the 
word  "  estate  "  would  make  the  clause  plain,  the  substitution  of 
the  word  "  thirds"  for  the  word  "dower"  would  make  it  quite 
as  plain.  If  the  words  had  been  "  dower  in  my  real  and  personal 
estate,"  the  word  "dower"  would  not  limit  the  interest  to  the 
realty,  and  the  word  "  estate  "  includes  both  real  and  personal 
property.  What  the  testator  meant  by  the  whole  sentence,  is 
the  matter  to  be  determined. 

I  am  inclined  to  think  that  the  word  "dower,"  as  it  stands  in 
the  sentence,  is  not  to  be  taken  as  having  been  used  in  its 
technical  sense,  but  is  to  be  taken  as  having  been  used  as 
equivalent  to  "  thirds."  We  are  not  without  cases  in  which 
particular  words  used  in  a  will,  opposed  to  the  intention  of  the 
testator,  have  been  rejected  as  having  been  used  by  mistake,  or 
through  ignorance  of  their  force,  or  have  been  construed  to 
have  the  meaning  of  other  words.  2  Myl.  and  Keen  149; 
6  Sim.  49;  2  Dess.  32;  2  Munf.  234;  1  Ibid.  549;  1  Russell 
and  Myl.  407;  6  Mad.  343;  3  Paige  9  ;  2  Paige  122;  2  A. 
K.  Marsh.  466. 

If  the  different  provisions  stood  in  the  following  order :     My 


MARCH  TERM,  1846.  353 

A  damson  v.  Ayres. 

executor  shall  sell  all  my  estate,  real  and  personal,  and,  after 
paying  the  debts,  pay  to  my  brother  John  $500,  and  to  my 
brother  James  $100;  and  the  rest  and  residue  of  my  estate 
shall  be  divided  between  my  two  children  ;  my  will,  however, 
is,  that  my  wife  shall  have  her  lawful  right  of  dower  out  of  my 
estate — I  think  the  intention  of  the  will  could  not  be  mistaken. 
Thea.*  are  the  provisions  of  the  will.  The  putting  them  in  the 
above  order  serves  only  to  show  more  strikingly,  that  the  clause 
had  aa  object  and  purpose  to  effect,  beyond  what  would  have 
been  the  effect  of  the  will  if  the  clause  had  been  left  out ;  and 
that  object  was  to  prevent  the  wife's  being  cut  off  from  the  per- 
sonal estate.  But  if  the  clause  is  read  as  the  defendant  would 
read  i(,  it  is  without  object  or  purpose,  and  would  have  no  influ- 
ence whatever,  and  it  should  therefore  be  presumed,  would  nof 
have  been  added.  We  have,  then,  a  word  in  the  clause  suffi- 
ciently broad  to  carry  out  what  would  naturally  be,  and  no 
doubt  was,  the  intention  of  the  will — the  word  "estate." 

The  description  the  testator  gives  of  the  interest  the  widow  is 
to  ha  ve  in  this  estate,  is  "  her  lawful  right  of  dower."  I  cannot 
douM  that  the  word  "dower"  may  stand  so  connected  in  a  will 
as  to  mean  the  lawful  third  of  the  personal  as  well  as  of  the 
real  estate,  and  I  think  it  means  that  in  this  will. 

Ou  the  bill  as  it  stands,  and  in  view  of  the  facts  which  the 
demurrer  must  be  taken  to  admit,  I  am  of  opinion  that  the  de- 
murrer should  be  overruled. 

It  iu  not  necessary  now  to  examine  the  question  whether 
parol  evidence  of  the  declarations  of  the  testator  would  be  ad- 
missible. The  situation  of  the  estate,  as  to  the  comparative 
amounts  of  realty  and  personalty,  might  certainly  be  shown. 
Suppose  the  estate  consisted  of  $100  in  land  and  $10,000  in 
personalty,  the  court  would  not  shut  its  eyes  to  that  fact,  and  it 
would  have  a  legitimate  influence  on  the  reading  of  the  will. 
To  this  extent  the  cases  go  without  difficulty.  12  Price  216; 
4  Rusa.  454. 

Demurrer  overruled. 

CITED  in  Leigh  v.  SavidgJt  Ex.,  1  McCar.  132. 


CASES  IN  CHANCEKr. 


Evans  v.  Huffman  et  al. 


JESSE  EVANS,  SURVIVING  EXECUTOR  OF  DAVID  CAVALIER, 
DECEASED,  v.  MARY  HUFFMAN  ET  AL. 

1.  A  mortgage  will  be  presumed  paid  if  the  mortgagee  never  entered,  and 
there  has  been  no  foreclosure,  nor  payment  of  interest  within  twenty  years. 

2.  Semble.  Insolvency  of  the  mortgagor  is  not  sufficient  to  overcome  the 
presumption. 

3.  Parties  are  confined  to  the  case  made  by  the  pleadings,  and  evidence  to 
facts  not  put  in  issue  should  not  be  read  or  taken. 

4.  Testimony  in  disproof  of  a  fact  confessed  by  the  pleadings  cannot  be  con- 
eidered.  '    .   f. 

5.  Would  the  absence  of  the  mortgagor  from  the  state  for  a  portion  of  the 
twenty  years,  defeat  the  presumption  of  payment  ?    It  jeems  not. 


Bill  for  the  foreclosure  of  a  mortgage,  dated  March  16th,  1819, 
given  by  John  Huffman,  since  deceased,  to  David  Cavalier,  since 
deceased,  to  secure  the  payment  of  a  bond  of  the  same  date, 
conditioned  for  the  payment  of  $200,  in  one  year  from  the  date 
thereof,  with  interest,  given  by  the  said  John  Huffman  to  the 
said  David  Cavalier.  The  mortgage  was  acknowledged  March 
17th,  1819,  and  recorded  the  27th  of  the  same  month.  The 
bill  was  filed  October  1st,  1841. 

On  the  1st  of  January,  1836,  John  Huffman  died,  intestate 
and  insolvent,  (the  bill  states,)  and  no  administration  was  ever 
granted  of  his  estate.  He  left  Mary  Shorter,  Ann  Kline,  wife 
of  John  Kline,  and  the  other  defendants,  his  children  and  heir-- 
at-law. 

David  Cavalier  died  in  June,  1825,  leaving  a  will,  of  which 
the  complainant  and  Mary  Cavalier,  widow  of  David  Cavalier, 
were  executors.  The  will  was  duly  proved  by  them.  In  No- 
vember, 1840,  Mary  Cavalier  died,  leaving  the  complainant 
surviving  executor. 

The  bill  states  that  the  whole  principal  sum,  with  interest 
from  the  date  of  the  bond  and  mortgage,  is  due  and  unpaid; 
that  John  Huffman  possessed  the  premises  till  his  death,  and 
that  from  the  time  of  his  death,  the  said  Mary  Cavalier  and  the 
complainant,  as  executors  as  aforesaid,  or  one  of  them,  have 
been  in  possession  of  the  premises  ;  and  that  the  rents  and 


MARCH  TERM,  1846.  355 

Evans  v.  Huffman  et  al. 

profits  have  not  been  more  than  sufficient  to  pay  the  taxes, 
assessments,  ami  necessary  repairs  levied  and  made  thereon. 

On  the  7th  of  February,  1842,  a  decree  pro  confexso  was 
made  against  John  Kline,  Jacob  Huffman,  and  John  Huffman, 
absent  defendants.  On  the  6th  of  April,  1842,  five  of  the  de- 
fendants, viz.,  Mary  Shorter,  Ann  Kline,  wife  of  John  Kline, 
Robert,  Michael  and  Stacy  Huffman,  put  in  their  answer,  admit- 
ting the  giving  of  the  bond  and  mortgage,  the  acknowledgment 
and  recording  thereof,  the  death  of  the  mortgagor,  intestate,  and 
that  no  administration  of  his  estate  had  been  granted  ;  stating 
that,  as  to  the  death  of  David  Cavalier,  and  his  will,  and  the 
death  of  Mary  Cavalier,  they  know  nothing,  &c.  •  admitting 
that  John  Huffman,  the  mortgagor,  until  his  death,  enjoyed  the 
premises,  by  tenants  living  thereon  under  him,  he  not  living 
thereon  himself;  but  denying  that  Mary  Cavalier  and  the  com- 
plainant, as  executors  as  aforesaid,  or  either  of  them,  have  been  in 
possession  of  the  premises  since  the  death  of  the  mortgagor ; 
and  submitting  that  the  said  executors  could  not  have  been  in 
possession  without  a  recovery  of  such  possession  by  some  pro- 
ceeding at  law  or  in  equity,  or  the  assent  of  the  mortgagor  or 
his  heirs  ;  and  denying  that  such  recovery  was  ever  had,  or  such 
assent  given.  And  they  say  that,  even  if  the  said  executors 
did  enter  on  the  premises,  they  did  so  as  trespassers  ;  and  they 
charge  that,  since  the  death  of  the  mortgagor,  his  children  and 
heirs-at-law  have  possessed  and  enjoyed  the  premises.  They 
submit  that,  on  the  case  made  by  the  complainant's  bill,  he  is 
not  entitled  to  the  relief  he  seeks,  his  testator  and  he  having 
slept  over  their  rights  for  more  than  twenty  years  ;  and  that  the 
bond  and  mortgage  have  thereby  become  inoperative  and  void.* 

They  insist  that  the  mortgage,  having  been  given  merely  to 
secure  the  bond,  ceased  to  have  any  legal  effect  as  soon  as  the 
bond  was  satisfied,  or  by  lapse  of  time,  or  other  cause,  could  not 
be  a  lawful  ground  for  the  recovery  of  the  money  therein  men- 
tioned. That,  after  the  lapse  of  sixteen  years,  the  bond  was, 
in  law,  presumed  to  be  satisfied  ;  and  that  the  mortgage,  giveu 
merely  to  secure  the  same,  became,  thereby,  and  consequently, 
inoperative,  and  of  no  effect.  That,  more  than  twenty  years 
having  elapsed  between  the  date  of  the  mortgage  and  the  filing 


356  CASES  IN   CHANCERY. 

Evans  v.  Huffman  et  al. 

of  the  bill,  and  the  said  mortgagor,  his  widow  and  heirs,  having 
possessed  the  premises  during  all  that  period,  without  claim 
on  the  part  of  the  complainant  or  his  testator,  the  complainant 
is  barred,  &c. ;  and  they  pray  that  they  may  have  the  same 
benefit  of  these  matters  as  if  they  were  formally  in  pleading 
alleged. 

They  say,  as  sustaining  the  presumption  of  law,  that  they  are 
informed,  and  believe  and  charge  that,  about  the  summer  of 
1820,  it  was  agreed  between  the  said  John  Huffman  and  the 
said  David  Cavalier,  that  the  said  David  should  receive,  for  coal 
charred  on  the  premises,  $50,  to  be  applied  towards  payment  of 
the  bond  ;  and  that  he  received  the  said  sum,  and  gave  a  receipt, 
stating  that  he  had  received  it  on  the  said  bond  ;  and  that  the 
said  David,  about  the  same  time,  bought  of  said  Huffman  a 
large  quantity  of  pine  timber  then  lying  in  logs,  at  $5  per  1000 
feet,  amounting  to  30,000  feet;  and  that  it  was  agreed  between 
them,  that  the  amount  thereof  should  go  towards  the  liquidation 
of  the  said  bond  ;  and  that  the  said  David  took  and  carried 
away  the  said  timber,  and  thereupon  gave  to  the  said  Huffman 
another  receipt  for  $150,  as  so  much  further  paid  on  said  bond  ; 
and  that  the  said  David,  in  the  year  1831,  rented  twenty  acres 
of  land  of  said  Huffman,  at  the  yearly  rent  of  $14  an  acre,  and 
that  it  was  agreed  between  them  that  the  rent  should  go  to  the 
payment  of  said  bond,  and  towards  payment  of  other  demands 
which  the  said  David  had  against  the  said  Huffman  after  satis- 
fying the  said  bond  ;  and  that,  thereupon,  some  time  in  the  year 
last  aforesaid,  the  said  David  gave  a  receipt  stating  that  he  had 
received  $80  from  the  said  Huffman,  in  payment  of  what  re- 
mained due  on  the  said  bond,  and  that  the  residue,  after  paying 
off  the  said  bond,  was  to  go  towards  payment  of  the  book  account 
lie  had  against  the  said  Huffman  ;  and  that  the  whole  amount 
due  on  the  said  bond  was  paid. 

That,  prior  to  the  giving  of  the  bond  and  mortgage,  Huffman 
was  intemperate,  and  after  that  time  gave  himself  up,  in  a  greafc 
measure,  to  habits  of  intemperance;  that  the  said  receipts  were 
seen  in  his  possession  about  1825;  but  that,  after  that  time,  he 
was,  from  his  habits,  entirely  separated  from  his  family,  and 
was,  at  that  time,  and  afterwards,  from  that  cause,  incapable  of 


MARCH  TERM,  1846.  357 


Evans  v.  Huffman  et  al. 


retaining  any  article  or  paper  of  value  in  his  possession;  and 
that  the  said  John  having,  from  that  time  to  the  time  of  his 
death,  lived  away  from  his  family,  and  having  died  separated 
from  them,  the  defendants  are  unable  to  produce  the  said 
receipts,  and  believe  them  to  be  lost,  or  to  have  fallen  into 
uuknowo  hands. 

That  they  are  informed  and  believe  and  charge  that  the  said 
David  repeatedly,  in  his  lifetime,  stated  that  the  said  bond  was 
paid  off,  and  expressed  his  wish  and  anxiety  to  give  up  the  said 
bond  to  the  said  Huffman,  but  that  the  said  Huffman,  after  the 
said  bond  was  paid  off,  was  not  living  in  the  neighborhood  of 
said  David. 

That  in  the  summer  of  1824,  more  particularly,  the  said 
David  stated  that  the  said  bond  was  paid  off,  and  all  his  other 
accounts  against  the  said  Huffman  ;  and  that  the  said  David,  on 
his  death-bed,  about  four  days  before  he  died,  expressed  great 
anxiety  to  see  the  said  Huffman,  and  give  him  up  the  said  writ- 
ings, and  requested  that  the  said  Huffman  might  be  brought 
to  him,  saying  he  was  afraid  that,  after  his  death,  they  would 
fall  into  other  hands,  and  be  wrongfully  set  up  against  the  said 
Huffman,  but  that  the  said  Huffman  not  living  near,  the  said 
David  died  without  seeing  him. 

That  shortly  afterwards,  the  said  Huffman,  hearing  of  the 
death  of  the  said  David,  and  taking  with  him  Samuel  Leeds 
and  Asa  Moore  for  witnesses,  went  to  the  late  residence  of  the 
•said  David,  and  demanded  the  said  bond  and  mortgage  of  his 
widow  and  executrix,  saying  they  were  paid  off;  and  that  the 
said  executrix  said  she  could  not  find  them,  but  that  they  were 
paid,  and  that  she  would  see  if  they  were  in  the  possession  of 
the  other  executor — the  complainant — and  that  she  gave  her 
word  of  honor  and  promise  to  the  said  Huffman,  that  the  said 
bond  and  mortgage  should  be  destroyed,  and  that  the  said 
executrix  repeatedly  afterwards  stated  that  the  said  bond  was 
paid  off.  And  the  defendants  say  they  are  ignorant,  and 
have  no  knowledge  or  information  of  the  other  matters 
alleged  or  charged  in  the  complainant's  bill,  and  not  answered 
unto. 

Testimony  was  taken  on  both  sides,  and  the  cause  was  heard 
on  the  pleadings  and  proofs. 


358  CASES  IN  CHANCERY. 

Evana  V.  Huffman  et  al. 

J.  C.  Ten  Eyck,  for  the  complainant,  cited  Saxton  685,  694 ; 
5  John.  Ch.  R.  553. 

H.  W.  Green,  for  the  defendants,  cited  1  John.  Ch.  R.  46 ; 
Ambler  645  ;  3  £ro.  C7i.  291,  639,  note;  2  $on/'s  Eq.,  §  1520, 
and  note  2;  2  Fes.,  Jr.,  11 ;  1  Phil.  Ev.  119  ;  4  Burrow's  Rep. 
1962;  10  Jo/m.  #.  387,  417  ;  16  John.  R.  214;  Penn.  R,  702; 
2  .fla/s*.  Rep.  113;  3  Green's  Sep.  296. 

THE  CHANCELLOR.  This  is  a  suit  for  the  foreclosure  of  a 
mortgage  given  March  16th,  1819,  to  secure  the  payment  of  a 
bond  of  that  date,  in  one  year,  with  interest.  The  bill  was 
filed  October  1st,  1841,  twenty-one  and  a  half  years  after  the 
bond  became  due,  by  the  surviving  executor  of  the  mortgagee. 
The  mortgagee  died  in  1825,  leaving  a  will.  The  mortgagor 
died  in  1836,  intestate,  and  no  administration  was  taken  of  his 
estate.  The  executrix,  Mary  Cavalier,  widow  of  the  mortgagee, 
died  in  November,  1840. 

The  bill  states  that  the  mortgagor  remained  in  possession  of 
the  premises  until  his  death,  and  this  is  admitted  by  the 
answer.  It  states  that,  from  the  time  of  the  mortgagor's 
death,  the  executors  of  the  mortgagee,  or  one  of  them,  have 
been  in  possession  of  the  premises.  This  is  denied  by  the 
answer. 

Two  grounds  of  defence  are  taken — first,  the  lapse  of  time, 
and  the  presumption  of  payment  arising  therefrom ;  second, 
actual  payment. 

Samuel  Leeds,  called  for  the  defendants,  testifies  to  the  pay- 
ment, and  the  mode  in  which  it  was  made,  and  that,  after 
Cavalier's  death,  Huffman,  the  mortgagor,  called  on  Mrs.  Cava- 
lier, the  executrix,  and  demanded  the  writings,  and  that  she 
told  him  she  did  not  know  where  they  were,  but  promised,  when 
she  found  them,  to  destroy  them.  Leeds'  testimony  has  been 
attacked  by  the  production  of  several  witnesses,  who  testify  that 
Leeds  told  them  the  mortgage  had  never  been  paid. 

On  the  testimony  in  reference  to  actual  payment,  as  it  stands, 
subject  to  the  evidence  given  in  impeachment  of  Leeds'  testi- 
mony, the  cause  cannot  be  decided  very  satisfactorily.  It  may 
be  said,  however,  that  the  depositions  on  this  part  of  the  case 


MARCH  TERM,  1846.  359 


Evans  v.  Huffman  et  al. 


Burnish  proof  of  the  wisdom  of  the  statute  of  limitations.  And 
on  this  part  of  the  case,  and  in  connection  with  what  Leeds 
swears  Mrs.  Cavalier  told  Huffman,  after  Cavalier's  death,  viz., 
that  she  would  destroy  the  papers  when  she  found  them,  and 
with  the  fact  that  the  widow  and  executrix  lived  more  than 
twenty  years  after  the  bond  became  due,  and  that  no  suit  was 
brought  till  after  her  death,  it  may  be  very  properly  asked 
why  should  the  executors  delay  so  Jong?  Was  Mrs.  Cavalier 
unwilling  to  bring  suit;  and  if  so,  why?  If  not,  why  did  not 
the  executors  close  the  estate  long  before?  Cavalier  died  in 
1825,  sixteen  years  before  the  suit  was  brought.  Have  they 
settled  their  accounts?  Are  they  charged  with  this  bond  and 
mortgage  ?  We  have  no  information. 

And  in  this  connection  it  may  be  further  remarked  that  Ca- 
valier's will  says  nothing  of  the  bond  and  mortgage,  or  of  the 
land  covered  by  the  mortgage.  From  the  frame  of  the  will, 
this,  I  think,  is  worthy  of  observation.  He  directs  so  much  of 
his  movable  property  as  will  pay  his  debts,  to  be  sold,  and  the 
u^e  of  the  surplus  thereof  he  gives  to  his  wife,  for  her  life.  He 
then  makes  seven  devises  of  land,  by  description,  gives  three 
small  pecuniary  legacies,  and  then  provides  that  if  there  should 
be  any  cash  left,  he  gives  it  to,  &c.,  and  there  is  no  other  resid- 
uary clause. 

It  would  be  painful  to  decree  a  foreclosure  after  such  a  lapse 
of  time,  if  from  the  testimony  and  the  circumstances  of  the 
case,  there  be  a  probability  of  actual  payment.  It  would  be  less 
painful  to  me,  and  more  salutary,  if  the  executors  should  suffer 
loss  for  their  default.  But  whatever  might  be  the  conclusion  of 
the  court,  if  this  were  the  only  ground  of  defence,  it  is  clear 
that  if  Leeds'  testimony  can  be  relied  on  to  prove  any  payment, 
it  proves  payment  in  full.  If  it  ought  to  be  considered  as  not 
entitled  to  credit  on  the  question  of  payment,  it  must  be  rejected 
altogether  as  to  that.  This,  (without  referring,  at  present,  to 
some  matters  to  be  hereafter  considered,)  would  leave  us  simply 
the  case  of  a  bill  to  foreclose  a  mortgage  after  twenty-one  and  a 
half  years,  on  which  no  interest  has  been  paid. 

I  am  of  opinion  that,  under  such  circumstances,  the  mort- 
gage should  be  presumed  paid.  I  think  the  spirit  of  ourstatute 
of  limitations  requires  us  to  make  the  presumption.  I  concur 


360  CASES  IN  CHANCERY. 

Evans  v.  Huffman  et  al. 

in  the  views,  of  the  Chancellor  on  this  subject,  expressed  in 
Wanmaker  v.  Van  Buskirk,  Saxton  693. 

It  is  true  the  Chancellor  there  says  he  was  not  called  on  to 
establish  the  principle  in  that  case,  but  it  is  evident  from  his 
reasoning,  that  if  he  could  not  otherwise  have  decided  the  case 
for  the  mortgagor,  he  would  have  given  effect  to  the  presump- 
tion. Indeed,  he  says,  standing  alone  it  would  be  tantamount 
to  actual  proof  of  payment. 

The  English  cases  and  the  cases  in  New  York  are  reviewed 
in  5  John.  Ch.  R.  545,  and  the  court  there  came  to  the  con- 
clusion that  a  mortgage  is  not  a  subsisting  title,  if  the  mort- 
gagee never  entered,  and  there  has  been  no  foreclosure,  nor 
payment  of  interest  within  twenty  years;  that  these  facts  au- 
thorize and  require  the  presumption  of  payment,  and  that  such 
presumption  is  founded  in  substantial  justice  and  the  clearest 
policy. 

The  force  of  the  remark  of  Sir  William  Grant,  in  12  Vesey 
252,  is  shown  in  this  case:  "The  presumption  does  not  rest  on 
the  belief  that  the  payment  has  actually  been  made,  but  is 
raised  because  the  means  of  creating  belief  or  disbelief,  after 
such  a  lapse  of  time,  are  so  little  to  be  relied  on." 

In  this  state,  we  have  a  statute  providing  that  every  action 
on  any  bond,  &c.,  conditioned  for  the  payment  of  money  only, 
shall  be  sued  within  sixteen  years  after  the  cause  of  action  ac- 
crues, and  not  after,  unless  a  payment  has  been  made  within  or 
after  that  period,  and  then  within  sixteen  years  after  such  pay- 
ment, and  not  after.  Whether  or  not  it  be  an  anomaly,  as  sug- 
gested by  the  counsel  for  the  defendants,  to  hold,  as  seems  to 
have  been  held,  that  twenty  years  shall  be  allowed  for  the  fore- 
closure of  a  mortgage  given  to  secure  such  bond,  that  is,  four 
years  after  the  bond  thus  secured  ceases  to  be  a  cause  of  action, 
I  do  not  now  inquire;  but  the  statute  very  fully  apprises  the 
courts  that  no  scruples  need  be  felt  in  raising  the  presumption 
of  payment  after  twenty  years. 

But  it  was  argued  that  this  presumption  may  be  overcome, 
and  that  the  insolvency  of  the  mortgagor  is  sufficient  to  over- 
come it ;  and  the  case  of  Wanmaker  v.  Van  Bu.skirk  was 
referred  to  for  this  position.  The  Chancellor,  in  that  case,  said 
that  the  presumption  might  be  overcome,  and  that  there  were 


MARCH  TERM,  1846.  361 

Evans  v.  Huffman  et  al. 

circumstances  in  that  case  of  sufficient  weight  to  destroy  it. 
The  mortgagor  had  married  the  daughter  of  the  mortgagee, 
aud  had  issue,  and  had  died  many  years  before,  leaving  his 
wife  and  children  in  possession  ;  and  they  were  not  in  a  situa- 
tion to  pay  either  principal  or  interest ;  and  to  have  exacted 
payment  must  have  brought  distress  upon  them.  These  were 
the  circumstances  which  the  Chancellor  said  were  sufficient,  in 
his  mind,  to  repel  the  presumption.  He  said  that  insolvency 
had  been  held  sufficient,  but  he  does  not  so  decide;  nor  was 
there  any  room  for  such  a  decision  in  that  case. 

I  do  not  see  that  insolvency  of  a  mortgagor  is  any  good  reason 
why  a  mortgage  should  not  be  foreclosed ;  or  any  good  reason 
why  the  mortgagee  should  permit  the  mortgagor  to  occupy  the 
premises  twenty  years  without  paying  any  interest.  But  if 
I  could  think  it  was,  the  fact  is  not  sufficiently  shown  in 
this  case.  When  was  he  insolvent?  A  warrant  of  attorney 
to  enter  judgment  was  annexed  to  the  bond  ;  and  the  money 
became  due  in  1820.  Was  not  the  property  sufficient  for  the 
moirey?  We  hear  of  no  other  debt  till  three  years  thereafter, 
and  that  for  only  $300.  How  much  was  the  property  worth? 

But  it  is  contended  that  the  mortgagee  took  possession  of  the 
premises  within  the  limited  time.  If  this  be  so,  and  can  be 
made  to  appear  in  the  cause,  the  presumption  does  not  arise. 
Leeds  was  in  possession  before  and  at  the  time  of  the  mortga- 
gor's death ;  aud  the  complainant  claims  that  he  went  into  pos- 
session under  the  mortgagee.  Can  this  be  shown,  under  the 
pleadings  in  the  cause  ?  The  bill  charges  that  the  mortgagor 
remained  in  possession  till  his  death  in  1836;  and  the  answer 
admits  it.  This,  then,  is  a  fact  not  in  issue  between  the  parties. 
Parties  are  confined  to  the  case  made  by  the  pleadings,  and  can- 
not examine  witnesses  or  read  evidence  to  facts  not  put  in  issue. 
It  would  be  dangerous  to  allow  a  complainant,  after  answer 
filed,  to  change  his  ground  in  his  proofs.  But  if  the  evidence 
were  admissible,  it  does  not  prove  the  fact.  Leeds  swears  he 
went  into  possession  under  the  mortgagor,  and  has  remained  in 
possession  ever  since.  The  evidence  offered  that  Leeds,  at 
times,  said  he  was  in  under  Cavalier,  if  it  is  to  be  relied  on  to 
prove  that  he  really  said  so,  can  have  no  jther  effect  than  to 

VOL.  i.  z 


362  CASES  IN  CHANCERY, 

Evans  v.  Huffman  et  al. 

weaken  our  belief  of  the  fact  he  swears  to.  It  is  not  substan- 
tive evidence  ;  it  is  no  evidence  of  a  fact;  no  evidence  that  he 
went  in  under  Cavalier  ;  and  he  swears  he  did  not.  But  the 
evidence  is  inadmissible  ;  a  fact  confessed  by  the  pleadings  can- 
not be  disproved. 

The  bill  charges  that  after  the  mortgagor's  death,  in  1836, 
the  executors,  or  one  of  them,  took  possession.  This  is  denied 
by  the  answer,  and  there  is  no  proof  of  it.  Leeds  was  in  long 
before,  and  has  continued  in  possession  ;  and  there  is  no  evi- 
dence of  his  holding  differently  after  the  mortgagor's  death;  or 
of  his  agreeing  to  hold  after  that  under  the  executors  or  devi- 
sees of  the  mortgagee. 

We  have  a  statute,  passed  February  21st,  1820,  which  pro- 
vides that  if  any  person  against  whom  there  shall  be  (among 
other  causes  of  action)  a  cause  of  action  on  a  bond  for  the  pay- 
ment of  money  only,  shall  not  reside  -in  the  state  when  such 
cause  of  action  shall  accrue,  or  shall  remove  from  the  state  after 
it  accrues,  before  the  time  of  limitation  (by  the  statute)  shall 
expire,  then  the  time  during  which  such  person  shall  not  reside 
in  the  state  shall  not  be  computed  as  part  of  the  period  limited 
for  bringing  the  action  ;  and  this  act,  it  has  been  adjudged  by 
our  Supreme  Court,  (2  Harr.  82,)  applies  to  obligations  made  be- 
fore its  passage. 

The  idea  of  removing  the  objection  growing  out  of  the  lapse 
of  twenty  years,  by  proof  of  the  mortgagor's  absence,  does  not 
seem  to  have  occurred  in  preparing  the  cause  for  hearing.  If  it 
had,  the  proof  of  his  removal  from  the  state,  and  the  time  of 
his  absence,  between  1820  and  1836,  (time  after  his  death  could 
not  be  counted)  would  have  been  more  definite,  if  absence,  on 
such  removal,  and  for  a  sufficient  length  of  time,  could  have 
been  shown.  But  if  the  proofs  were  sufficiently  definite  to 
raise  the  point  distinctly,  the  act  is  not,  in  terms,  applicable  to 
a  mortgage;  nor  is  a  mortgage,  as  it  seems  to  me,  within  the 
spirit  of  the  act.  If  our  Court  of  Chancery  had  adopted  the 
principle  that  a  lapse  of  sixteen  years  should  bar  the  foreclos- 
ure of  a  mortgage  given  to  secure  a  bond,  in  analogy  to  the 
statute  limitation  of  actions  on  bonds,  it  might,  with  some 
force,  be  argued  that  the  period  of  absence  or  removal  from 
the  state  should  be  deducted,  in  analogy  to  the  act  of  1820. 


MARCH  TERM,  1846.  363 

Hazen'e  Adm'ra  v.  Tillman's  Heirs. 

But  the  argument  would  not  be  conclusive,  for  the  land  cannot 
remove. 

Again  :  No  opinion  has  been  intimated  in  this  court,  that 
any  period  short  of  twenty  years  would  bar  a  mortgage.  The 
court  has  not  acted  on  mortgages  in  reference  to  the  statute  limi- 
tation of  actions  on  bonds. 

On  the  whole,  I  am  of  opinion  that  the  bill  must  be  dismissed. 

Jjeeree  accordingly. 


THE  ADMINISTRATORS  OF  AARON  HAZEN  v.  THE  HEIRS  AND 
DEVISEES  OP  JOHN  TILLMAN. 

A  decree  against  executors,  in  a  suit  against  them,  is  no  evidence  in  a  sub- 
sequent suit  against  the  devisees,  of  the  existence  of  the  debt. 


In  January,  1839,  the  administrators  of  the  personal  estate 
of  Aaron  Hazen,  deceased,  on  a  bill  theretofore  filed  by  them 
against  the  executors  of  the  will  of  John  Till  man,  deceased, 
obtained  a  decree  against  the  said  executors  for  the  payment  by 
them,  out  of  assets  quando  acciderint,  of  $469.78. 

In  1841  the  said  administrators  of  Hazen's  estate  filed  a  bill 
against  the  heirs  and  devisees  of  the  said  John  Tillman,  setting 
forth  the  said  bill  against  the  executors  of  his  will,  and  the  de- 
cree thereon ;  and  stating  that  the  personal  estate  of  the  said 
John  Tillman,  deceased,  has  been  exhausted  and  fully  admin- 
istered by  the  said  executors ;  that  there  is  no  personal  estate 
of  the  said  John  Tillman,  deceased,  t*  the  knowledge  of  the 
complainants,  from  which  assets  in  futuro  might  come  to  the 
hands  of  the  said  executors  to  be  administered  ;  and  that  lands 
of  the  said  John  Till  man,  deceased,  came  to  the  hands  of  the 
defendants  by  devise,  which  were  sold  by  them  ;  and  praying 
that  they  might  be  decreed  to  pay  the  amount  of  the  said  decree 
against  the  said  executors. 

The  bill  was  demurred  to. 


364  CASES  IN  CHANCERY. 

Hazen's  Adm'rs  v.  Tillman's  Heirs. 

P.  I).  Vroom,  in  support  of  the  demurrer,  cited  1  Munf. 
455  ;  Greenl.  Evid.,  §§  535,  536  ;  Phil.  Evid.  226. 

E.  H.  Whelpley  and  H.  W.  Green,  contra,  cited  Elm.  Dig. 
170,  171  j  4  Johns.  Ch.  R.  620;  1  Smith's  Ch.  Prac.  526; 
Mitf.  Plead.  59  ;  Greenl.  Evid.  591 ;  Saxton  512. 

THE  CHANCELLOR.  The  question  is  whether  a  decree 
against  executors,  in  a  suit  against  them,  is  sufficient  evidence 
in  a  subsequent  suit  against1  the  heirs  and  devisees  of  the  exis- 
tence of  the  debt. 

A  decree  of  this  court  is  equivalent  to  a  judgment  at  law. 
But  one  who  is  not  made  a  party,  and  between  whom  and  the 
party  there  is  no  privity,  is  not  bound  by  the  decree.  There  is 
DO  privity  between  the  executor  and  the  heir  or  devisee.  1  Paige 
35 ;  1  Munf.  437 ;  4  Harr.  and  John.  126,  270. 

In  the  case  in  Munford,  the  bill  was  against  the  executors 
and  devisees ;  no  proof  of  the  claim  was  offered,  except  a  judg- 
ment against  the  executors.  The  court  held  it  was  no  proof 
against  the  devisees. 

The  debt  of  the  ancestor,  or  devisor,  should  be  established  in 
a  suit  in  which  the  heirs,  or  devisees,  are  parties,  and  in  which 
they  can  contest  it. 

The  effect  of  the  demurrer  is  not  to  admit  the  debt,  but  to 
submit  to  the  court  the  question  whether,  on  the  fact  stated  in 
the  bill,  that  a  decree  was  obtained  in  a  suit  against  the  execu- 
tors, a  decree  can  be  made  against  the  devisees  in  this  suit. 

The  demurrer  is  allowed,  with  leave  to  the  complainants  to 
trnend  their  bill. 

Order  accordingly. 


MARCH  TERM,  1846.  365 


Kean  v.  Colt  et  al. 


JOHN  KEAN  v.  KOSWELL  L.  COLT,  THE  SOCIETY  FOR  ESTAB- 
LISHING  USEFUL  MANUFACTURES,  ET  AL. 

1.  On  motion  on  bill  and  notice  for  an  injunction  and  the  appointment  of  a 
receiver,  the  affidavit  of  the  defendant  may  be  read  in  opposition. 

2.  To  authorize  an  injunction  and  the  appointment  of  a  receiver,  there 
must  be  a  well-grounded  apprehension  of  injury  about  to  be  done. 

3.  Where  the  misconduct  alleged  in  the  bill  occurred,  if  at  all,  several 
years  before,  and  no  act  is  threatened,  or  mischief  impending,  an  injunction 
and  receiver  will  not  be  ordered. 

The  bill  in  this  case,  filed  November,  1845,  by  John  Kean, 
representing  himself  to  be  a  stockholder  in  the  Society  for  Es- 
tablishing Useful  Manufactures,  for  himself  and  all  other  stock- 
holders of  the  said  society  who  shall  come  in  and  seek  relief  by 
and  contribute  to  the  expense  of  the  suit,  states  that  the  society 
was  incorporated  on  the  22d  November,  1791  ;  that  it  was  the 
intention  of  the  legislature  that  the  society  should  themselves 
carry  on  manufactures,  and  that  the  society  so  understood  the 
Jaw,  and  under  that  understanding  bought  the  old  mill  seat  at 
Paterson,  and  upwards  of  700  acres  of  land,  with  the  water  in- 
cident thereto,  both  above  and  below  the  falls  at  that  place. 
That  in  1793  the  society  established  a  cotton  factory  at  Pater- 
son,  on  said  lands,  and  in  1794  a  printing,  bleaching  and  dye 
shop,  but  very  soon  thereafter  entirely  discontinued  manufac- 
turing, and  has  not  since  resumed  it,  nor  has  any  part  of  their 
capital  been  since  employed  in  manufacturing  purposes. 

That  for  many  years  the  affairs  of  the  society  were  entirely 
neglected,  and  so  managed  by  the  directors  thereof,  that  the 
stockholders,  entirely  ignorant  of  its  condition,  placed  little  value 
on  the  stock  of  the  society,  or  its  property;  and  that  about  1814 
Roswell  L.  Colt  bought  up  at  a  depreciated  price  a  large  propor- 
tion of  the  shares,  and  called  the  society  together,  and  proposed 
to  its  members  a  plan  for  improving  its  affairs,  which  was  to 
abandon  all  hope  of  manufacturing,  and  to  confine  its  opera- 
tions to  increasing  the  water-power  which  it  was  supposed  to 
own,  and  the  number  of  sites  for  manufacturing  purposes,  to 


366  CASES  IN  CHANCERY. 

Kean  v.  Colt  et  al. 

be  used  by  others,  and  to  lease  to  others  the  sites  with  water 
privileges  for  manufacturing  purposes,  which  plan  was  adopted, 
and  has  ever  since  been  pursued,  under  the  sole  direction  of 
Iloswell  L.  Colt,  who  was  then  made  governor  of  the  society, 
and  has  continued  such  governor  ever  since. 

That  by  the  adoption  and  pursuit  of  the  said  plan,  a  very 
large  annual  income  has  ever  since  been  derived  from  the  pro- 
perty of  the  society.  That  on  the  22d  February,  1814,  the  legis- 
lature passed  an  act  entitled  "An  act  to  preserve  the  interest  of 
this  state  now  vested  in  the  stock  of  the  Society  for  Establishing 
Useful  Manufactures,"  the  preamble  of  which  recites  that  the 
state  had  invested  in  the  stock  of  the  society  $10,000,  being  the 
amount  of  100  shares ;  that  the  original  design  and  intention 
of  the  institution  had  failed,  and  been  for  a  long  time  aban- 
doned ;  that  no  dividends  had  ever  been  made,  nor  any  satisfac- 
tory account  rendered  by  the  directors  to  the  commissioner  of 
the  state,  of  the  transactions  of  the  society,  or  the  situation  of 
its  property  or  funds ;  and  that  the  society  had  lately  sold  and 
conveyed  portions  of  its  real  estate,  and  had  neither  made,  nor 
offered,  any  dividend  of  the  proceeds  of  the  sale,  and  which  act 
appoints  E.  Vanarsdale,  esquire,  a  commissioner,  under  the  15th 
section  of  the  charter  of  the  society. 

That  under  this  act  Mr.  Vanarsdale  made  a  report  to  the  legis- 
lature, which  was  referred  to  a  committee  of  the  legislature,  who, 
on  the  19th  of  January,  1816,  reported  that  the  personal  and 
leased  property  of  the  society,  (according  to  its  statements  ex- 
hibited by  its  agents  to  Mr.  Vanarsdale,)  as  existing  on  the  2d 
October,  1815,  amounted  to  $11 9,3]  7. 34.  (The  items  consti- 
tuting that  sum  are  given  by  the  committee,  and  stated  in  the 
bill.)  That  the  committee  further  reported  that  there  remained 
unsold,  belonging  to  the  society,  606$o  acres ;  and  that  the 
number  of  shares  then  consisted  of  2266.  That  the  committee 
recommended  that  the  legislature  accept,  from  the  society,  a 
conveyance  to  the  state  of  so  much  land  as  would  be  equal  in 
value  to  the  state's  shares  of  stock,  which  they  estimated  to  be 
worth,  in  land,  $11,000,  and  transfer  to  the  society,  or  to  such 
person  as  the  society  might  appoint  to  receive  the  same,  the 
state's  shares  in  the  stock  of  the  society.  That  on  this  report 
the  state,  by  act  of  the  legislature,  authorized  the  acceptance 


MARCH  TERM,  1846.  367 

Kean  v.  Colt  et  al. 

cf  a  conveyance  of  so  much  land  as  a  majority  of  three  persons, 
named  in  the  act,  should  judge  to  be  of  the  value  of  $11,000, 
and  the  transfer  of  its  stock  to  the  society,  or  to  such  person, 
&c.  That  on  the  19th  of  October,  1816,  the  persons  named  in 
said  act  reported  to  the  legislature  that  they  had  accepted  a  deed 
from  the  society  to  the  state,  for  three  hundred  and  one  and 
fifty-three  hundredths  acres,  and  had  transferred  the  state's  stock 
to  Roswell  L.  Colt,  agreeably  to  the  directions  of  the  society,  and 
presented  to  the  legislature  the  direction  of  the  society,  under 
their  seal,  to  transfer  the  state's  shares  to  the  said  Colt.  That 
this  report  was  confirmed  by  the  legislature  October  25th,  1816. 

The  bill  charges  that  these  shares,  being  conveyed  to  the  said 
Colt  in  consideration  of  lands  of  the  society  conveyed  to  the 
state,  must  be  considered  as  belonging  to  the  society,  and  the 
said  Cult  be  considered  as  holding  the  said  shares  only  as  trustee 
for  the  society. 

The  bill  charges  that  the  said  Colt  has  converted  the  said 
stock,  and  the  dividends  thereof,  to  his  own  use.  That  by  the 
tenth  and  eleventh  sections  of  the  charter,  it  is  provided  that 
there  shall  be  thirteen  directors,  and  that  in  elections  for  direct- 
ors, each  share  shall  have  one  vote,  and  that  five  of  the  direct- 
ors— the  governor  or  deputy  governor  of  the  society  beiug  one 
— shall  constitute  a  board  for  business. 

That  the  said  Colt,  by  buying  up  a  majority  of  the  stock, 
obtained  the  entire  control  of  the  society,  and  that,  after  having 
done  so,  and  examined  the  condition  of  the  society,  he  found 
that  its  stock  was  of  much  greater  value  than  the  public  or 
stock  holders  supposed ;  and,  for  the  purpose  of  inducing  the 
stockholders  to  sell  their  stock,  represented  that  the  society  had 
lost  a  great  deal  of  money  by  embarking  in  the  business  for 
•which  they  had  been  incorporated,  and  had  abandoned  their 
business,  and  had  lost  a  large  amount  in  their  lottery  concern, 
and  that  the  stock  was  valueless,  though,  at  the  same  time,  it 
was  worth  par,  and  that  the  said  Colt,  by  such  false  representa- 
tions, succeeded  in  purchasing  a  very  large  majority  of  the 
stock.  That,  beiug  the  owner  of  such  majority,  he  has,  for 
more  than  thirty  years,  caused  himself,  and  such  others  as  he 
fhose  and  could  control,  to  be  elected  directors — in  most  instances 
irresponsible  persons  and  persons  who  would  obey  hw  direc- 


368  CASES  IN  CHANCERY. 

Kean  y.  Colt  et  al. 

tions — and  elect  such  persons  as  he  should  name  governor  and 
deputy  governor;  and  that  the  said  Colt  has,  for  all  that  period, 
been  and  still  is  such  governor;  and  that,  at  times,  one  Joseph 
Smith,  a  clerk  of  the  said  Colt,  has  been  deputy  governor;  and 
that  the  complainant  is  informed  and  believes  that  the  other 
directors  are  mere  instruments  and  agents  of  the  said  Colt,  hav- 
ing no  actual  interest  in  the  society,  and  who,  if  they  hold  any 
stock,  are  mere  trustees  for  the  said  Colt. 

That,  by  the  charter,  the  cashier  or  treasurer  of  the  society  i8 
required  to  give  security  in  $20,000.  That  Joseph  Smith  is 
now  such  cashier  or  treasurer,  and  that  he  has  never  been  re- 
quired to  give  security.  That  the  charter  requires  that  there 
shall  be  a  yearly  dividend  for  the  first  five  years,  and  thereafter 
a  half-yearly  dividend,  of  so  much  of  the  profits  of  the  society 
as  to  the  directors  should  seem  expedient.  That,  for  a  large 
number  of  years  last  past,  the  profits  of  the  society  have  been 
very  large.  That  the  charter  authorized  lotteries  to  raise,  for 
the  benefit  of  the  society,  $100,000.  That  large  sums  of  money 
have  been  received  by  the  said  Colt,  under  some  arrangement 
with  D.  S.  Gregory  and  others,  in  reference  to  the  lottery  privi- 
lege granted  by  the  charter,  and  have  been  appropriated  by  him 
to  his  own  use,  except  a  few  thousand  dollars,  which,  the  com- 
plainant is  informed  and'  believes,  has  been  paid  to  certain 
agents,  to  obtain  influence  with  the  legislature  to  prevent  their 
putting  a  stop  to  the  lotteries. 

That  the  rents,  profits,  and  resources  of  the  society  have  come 
to  the  hands  of  the  said  Colt,  and  have  been  expended  by  him 
in  objects  wholly  distinct  from  the  interests  of  the  society — to 
the  building  of  a  house  and  fixtures,  costing  over  $100,000,  for 
the  residence,  as  he  states,  of  the  governor  of  the  society,  and 
which  are  now  in  his  possession,  and  the  care  and  improvement 
of  which  is  a  subject  of  charge,  by  the  said  Colt,  on  the  profits 
of  the  society;  and  that  he  furnished  the  said  house  extrava- 
gantly, with  the  money  of  the  society — ail  which  the  complain- 
ant charges  to  be  fraudulent  aud  in  violation  of  his  rights. 

That  the  said  Colt  has  expended,  on  a  small  farm  owned  by 
the  society,  in  the  vicinity  of  Paterson,  $30,000  of  the  funds  of 
the  society,  in  costly  improvements,  and  in  purchasing  cattle 
and  other  stock,  the  whole  of  which,  with  the  Jiinn.  would  not 


MARCH  TERM,  1846.  S69 

Kean  v.  Colt  et  al. 

now  sell  for  more  than  $30,000.  That  Colt  pretends  that  all  this 
was  done  in  pursuance  of  resolutions  of  the  board  of  directors; 
whereas  the  complainant  charges  that  if  there  are  any  such 
resolutions,  they  were  procured  to  be  passed  by  Colt,  he  having 
the  control  of  a  majority  of  the  stock,  and  by  the  votes  of  direc- 
tors put  in  by  him,  and  who  held  their  offices  at  his  will. 

The  bill  charges  that  the  said  Colt,  being  indebted  to  the 
executors  of  Robert  Oliver,  deceased,  in  a  large  sum,  did,  on  the 
14th  of  November,  1839,  agree  to  give  them  a  bond  and  mort- 
gage of  the  society  for  $100,000,  and  also  sundry  leases  of  the 
society,  amounting  to  $14,995,  in  part  payment  of  his  said 
individual  debt;  and  further,  that  the  said  executors  should 
have  the  control  of  the  board  of  directors  of  the  society.  That 
the  said  Colt,  for  the  purpose  of  enabling  himself  to  pay  his 
individual  debts,  procured  or  induced  the  board  of  directors  of 
the  society  to  give  him  a  mortgage  on  the  property  of  the  society 
for  $100.000,  and  to  execute  to  him  five  bonds  of  the  society, 
amounting  to  $80,000;  and  to  give  him  another  mortgage  on 
a  house  and  40  acres  of  land  in  the  society,  to  secure  the  last- 
mentioned  bonds  ;  and  that  on  the  1st  of  February,  1840,  he 
induced  the  board  to  convey  to  him  a  large  number  of  leases 
and  building  lots  of  the  society,  amounting  to  $200,000;  all 
which  several  bonds  and  mortgages,  leases,  building  lots  and 
property  were,  very  soon  after,  conveyed  by  the  said  Colt,  in 
payment  of  his  individual  debts,  to  the  said  executors  of  Robert 
Oliver  and  Margaret  Colt  and  Emily  Gibbs. 

That  at  the  time  the  said  bonds  and  mortgages,  conveyances 
and  transfer  of  leases  were  made,  the  board  consisted  of  the 
said  Ro.swell  L.  Colt,  and  a  brother  and  two  sons  of  the  said 
Colt,  and  William  L.  Clark,  Elisha  B.  Clark,  and  Daniel  Ridg- 
way.  That  on  the  14th  of  November,  1839,  the  said  Roswell 
L.  Colt,  to  carry  out  his  arrangement  to  give  the  control  of  the 
board  to  the  executors  of  Robert  Oliver,  caused  and  procured 
four  of  the  then  directors,  viz.,  William  L.  Clark,  Daniel  Ridg- 
way,  Robert  O.  Colt  and  James  C.  Colt,  to  resign,  and  the  said 
Charles  Oliver  and  Thomas  Oliver  and  John  Glenn  and  Thomas 
S.  Gibbs  to  be  elected  in  their  places. 

That  by  the  3d  section  of  the  charter  it  is  enacted  that  the 
society  shall  not  deal  or  trade  except  in  such  articles  as  itself 


370  CASES  IN  CHANCERY. 

Kean  v.  Colt  et  al. 

shall  manufacture,  and  the  materials  thereof,  and  as  shall  be 
really  and  truly  received  in  payment  and  exchange  therefor-. 
That  the  said  bonds,  mortgages,  conveyances,  and  transfers  of 
leases  to  the  said  Roswell  L.  Colt  were  not  made  by  a  quorum 
of  disinterested  directors  j  and  that  the  said  directors  had  no  au- 
thority'under  the  charter  to  make  the  same,  and  that  the  same 
are  fraudulent  and  void  as  against  the  stockholders,  and  a 
breach  of  trust  in  the  directors  who  made  them,  and  in  the  said 
Roswell  L.  Colt,  who  received  them. 

That  the  complainant  has  been  informed  and  believes  that 
the  said  Roswell  L.  Colt  afterwards,  either  himself  or  through 
an  agent,  bought  back  the  said  real  estates,  leases  and  other 
property,  at  a  depreciated  value,  and  paid  for  the  same  with 
the  money  or  property  of  the  society,  and  now  holds  the  same 
for  his  own  benefit.  That  the  said  Roswell  L.  Colt  has  bought 
a  large  number  of  shares  of  the  stock  of  the  society,  with  the 
funds  of  the  society,  and  has  by  that  means  obtained  the  entire 
control  of  the  society  ;  and  as  there  is  no  provision  in  the  char- 
ter requiring  a  director  to  be  a  stockholder,  he  elects  persons  for 
directors  who  own  uo  stock,  but  who  are  his  agents,  instruments, 
and  dependents. 

That  by  way  of  consideration  for  said  bonds  and  mortgages, 
&c.,  made  by  the  directors  to  him,  the  said  Roswell  L.  Colt  pre- 
sented claims  against  the  society  to  the  amount  of  $305,000, 
wholly  unfounded  and  unjust ;  and,  if  any  settle'iuent  was 
made  between  him  and  the  directors,  it  was  erroneous,  fraudu- 
lent and  void,  and  a  mere  contrivance  of  the  said  Roswell  L. 
Colt,  to  obtain  a  conveyance  or  transfer  of  the  property  to  him. 

That  on  the  17th  March,  1840,  the  said  John  O.  Colt  was 
the  acting  deputy  governor  of  the  society  ;  and  on  that  day  the 
society  purported  to  convey,  under  the  seal  of  the  society  and 
the  signature  of  the  said  John,  as  deputy  governor,  to  said  Ros- 
well L.  Colt,  for  the  consideration  of  $50,000,  a  large  number 
of  building  lots  in  Paterson  belonging  to  the  society,  and  in  the 
deed  conveying  the  same  there  were  full  covenants  of  warranty  ; 
and  that  on  the  same  day,  there  was  also  conveyed  by  deed,  in 
the  same  manner,  to  said  Roswell  L.  Colt,  for  the  consideration 
of  $150,000,  twenty-two  feet  of  water  in  the  Passaicj  and  on 
the  same  day,  the  said  Roswell  L.  Colt  and  his  wife  conveyed 


MARCH  TERM,  1846.  371 

Eean  v.  Colt  et  al. 

the  whole  of  said  building  lots  and  water  to  the  executors  of 
Robert  Oliver,  in  payment  of  a  debt  due  from  the  said  Roswell 
L.  Colt,  individually,  to  the  said  Robert  Oliver  in  his  life- 
time. 

The  bill  charges  that  nothing  has  ever  been  paid  by  the  said 
Roswell  L.  Colt  to  the  society,  towards  the  consideration  men- 
tioned in  said  conveyances ;  and  that  said  executors  took  the 
said  conveyance  from  Roswell  L.  Colt  and  wife  to  them  with 
knowledge  that  nothing  had  been  so  paid  ;  that  said  Roswell  L. 
Colt  had  no  authority  to  cause  the  same  to  be  so  conveyed  to 
them  as  aforesaid,  and  that  he  had  no  title  thereto,  or  right  to 
pass  the  same  to  them.  That  the  said  conveyances  were  not 
made  by  a  regular  order  of  the  board  ;  that  a  quorum  of  the 
board  did  not  vote  for  the  same;  that  the  said  Roswell  L.  Colt 
himself  was  one  of  the  number  by  whose  votes  the  resolutions 
were  passed  ;  and  that  the  others  whose  votes  passed  the  same, 
were  merely  nominal  directors,  acting  under  the  dictation  and 
control  of  the  said  Roswell  L.  Colt,  and  voting  on  his  stock. 

That  the  property  of  the  society,  notwithstanding  the  extrava- 
gant expenditures  of  the  said  Roswell  L.  Colt,  increased  between 

1814  and  1845,  from  $108,268  to  $ ,  and  that  the 

dividend  to  which  the  stockholders  were  entitled  was per 

cent. ;  but  that  the  said  Roswell  L.  Colt  prevented  the  directors 
from  declaring  any  larger  dividend  than  five  per  cent,  on  the 
said  2266  shares,  in  order,  as  the  complainant  believes,  to  enable 
the  said  Colt  to  buy  up  the  stock  at  a  depreciated  value.  That, 
in  order  nominally  to  comply  with  their  charter,  dividends  have 
been  declared,  from  time  to  time,  of  about  fire  per  cent,  on  the 
amount  of  the  capital  stock  of  the  society. 

The  bill  charges  that  Colt  is  unable  to  account  for  the  waste 
and  misapplication  by  him  of  the  property  of  the  society  ;  and 
the  complainant  says  he  is  apprehensive  that  if  the  property 
of  the  society  is  suffered  to  remain  under  the  control  of  Colt 
and  such  directors  as  he  may  appoint,  there  will  be  serious  loss 
to  the  complainant  and  the  other  stockholders.  That  the  facts 
before  stated  show  such  an  entire  control  by  Colt  over  the  board, 
and  such  entire  subserviency  of  the  board  to  his  will,  as  renders 
the  property  of  the  society  very  unsafe  in  the  hands  of  such 
depositaries. 


372  CASES  IN  CHANCERY. 

Kean  v.  Colt  et  al. 

The  bill  charges  that  Colt  caused  to  be  invested  in  United 
Sates  Bank  stock  a  large  sum  of  the  moneys  of  the  society, 
and,  by  means  of  the  sale  of  the  said  stock,  or  by  buying  the 
notes  of  the  said  bank  with  the  funds  of  the  society,  much 
below  their  par  value^  and  passing  them  to  the  bank  at 
their  par  value,  in  payment  of  his  own  debt,  made  over 
$100,000. 

The  bill  prays  that  said  Roswell  L.  Colt  may  set  forth  the 
particulars  of  the  personal  estate  of  the  society  which  have  come 
to  his  possession  or  use;  and  whether  any  moneys  of  the  society 
have  been  placed  at  interest,  and  in  whose  name,  and  what 
sums  have  been  received  for  interest,  and  by  whom  ;  and  that 
he  may  set  forth  whether  he  hath  not  applied  all,  or  some,  and 
what  part  of  the  real  or  personal  estate  of  the  society  to  or  for 
his  own  use ;  and  that  he  may  be  removed  from  the  office  of 
director  and  governor  of  the  society,  and  be  decreed  to  replace 
all  such  parts  of  the  personal  property  of  the  society  as  may 
have  been  sold  by  him  ;  and  that  he  may  account  for  all  the 
revenues,  rents,  and  profits  of  the  estate  of  the  society  which 
have  come  to  his  hands  or  use;  and  for  all  the  moneys  received 
by  him  for  or  on  account  of  any  sale  or  assignment  of  the 
right  to  draw  lotteries,  or  of  the  lottery  privileges  granted  by 
the  charter;  and  for  all  premiums  he  may  have  received  at 
exhibitions  of  articles  of  the  growth  or  manufacture  of  the  society, 
or  the  product  of  its  property,  or  of  labor  paid  for  by  the  money 
of  the  society;  and  for  all  breaches  of  trust  and  misapplication 
of  the  funds  of  the  society  ;  and  for  all  moneys  made  by  him 
by  the  purchase  and  sale  by  him  of  any  of  the  property  of  the 
society  with  the  funds  of  the  society;  and  that  the  said  deeds, 
conveyances,  and  mortgages  to  the  said  Roswell  L.  Colt  may  be 
declared  void  ;  and  that  the  deeds,  conveyances,  and  mortgages 
of  the  property  of  the  society  made  by  the  said  Colt  to  the  ex- 
ecutors of  Robert  Oliver,  deceased,  and  Margaret  Colt  and 
Emily  Gibbs  may  be  declared  void ;  and  that  an  inventory  may 
be  taken  of  all  the  property  of  the  society;  and  that  the  said 
mansion,  appurtenances,  furniture,  &c.,  and  the  said  farm  and 
stock  may  be  sold,  and  in  case  the  proceeds  of  the  sale  be  in- 
sufficient to  pay  the  costs  thereof,  and  of  maintaining  the  same, 
that  the  said  Colt  may  be  decreed  to  account  for  the  deficiency  j 


MARCH  TERM,  1846.  373 

Kean  v.  Colt  el  al. 

and  that  a  receiver  may  be  appointed  of  all  the  rents,  issues 
and  profits  of  the  property  of  the  society,  real  and  personal,  and 
to  take  possession  of  the  said  mansion-house  and  the  lands  at- 
tached thereto,  and  of  the  said  farm  and  the  stock  thereon,  and 
of  all  the  lands,  property  and  estate  of  the  society  conveyed  by 
said  Colt,  or  by  him  and  his  wife,  to  the  executors  of  Robert 
Oliver  and  Margaret  Colt  and  Emily  Gibbs,  and  to  receive  the 
rent  from  the  lessees  of  land  or  water  of  the  society,  on  the 
leases  which  have  been  assigned  by  the  said  Colt,  or  by  his  pro- 
curement or  consent,  to  the  executors  of  Robert  Oliver,  or  to 
Margaret  Colt  and  Emily  Gibbs,  or  any  of  them;  and  that  the 
affairs  of  the  society  be  wound  up,  and  its  property  be  sold,  and 
the  proceeds  thereof,  after  the  payment  of  its  debts,  be  divided 
among  the  stockholders;  and  that  the  said  Colt  maybe  restrain- 
ed from  expending  any  of  the  money  of  the  society  in,  &c. ; 
and  from  selling,  assigning,  conveying  or  mortgaging  any  of 
the  real  estate  of  the  society;  and  from  assigning  or  trans- 
ferring any  of  the  leases  of  water,  or  water  rights  of  the  so- 
ciety ;  and  from  using  the  funds,  credit  or  name  of  the  society, 
for  any  purpose  whatever;  and  that  the  society  be  restrained 
from  paying  money  to  the  said  Roswell  L.  Colt,  or  to  his  agents, 
in  the  shape  of  salary  or  otherwise;  and  from  parting  with 
any  of  the  funds  or  property  of  the  society,  except  by  order  of 
this  court. 

Subpoana  is  prayed  against  Roswell  L.  Colt,  John  O.  Colt, 
Charles  Oliver,  Thomas  Oliver,  Robert  M.  Gibbs,  Emily  Gibbs, 
and  the  Society  for  Establishing  Useful  Manufactures. 

On  the  filing  of  this  bill,  the  complainant  gave  notice  of  a 
motion,  founded  on  the  charges  of  the  bill,  for  an  injunction, 
and  the  appointment  of  a  receiver,  pursuant  to  the  prayer  of 
the  bill. 

On  the  hearing  of  the  motion,  and  after  the  reading  of  the 
bill,  two  affidavits  of  Roswell  L.  Colt,  and  an  affidavit  of  Jo- 
seph Smith,  an  agent  of  the  society,  were  offered  in  opposition 
to  the  motion,  and  were  objected  to. 

B.  Williamson  and  W.  Halsted,  in  support  of  the  objection, 
cited  Story's  Eq.  PL,  §§  583,  606 ;  Risley's  Eq.  Evid,  242; 
Saeton  458;  1  Green's  Oh.  R.  191;  1  Johns.  Ch.  R.  444, 


374  CASES  IN  CHANCERY. 

Kean  v.  Colt  et  al. 

445 ;  1  Smitli's  Ch.  Pr.  595,  597 ;  3  Anstruther  658 ;  6  Cranch 
51;  2  Paige  413. 

P.  D.  Vroom  and  E.  Vanarsdale,  Sr.,  contra,  cited  9  Paige 
604;  19  VeseySSQ,  447;  1  Hopk.  599;  4  Cbnd  #r<#.  CA. 
447;  2  Merivale  29;  Cooper's  £?.  .#.  3C3 ;  Drwn/  on  Inj. 
246,  374,  137,  192 ;  1  Grant's  Ch.  Pr.  332 ;  Eden  on  Inj. 
327,  328. 

THE  CHANCELLOR.  It  is  every  day's  practice  to  hear  an 
answer  read  as  an  affidavit,  against  a  motion  for  an  injunction. 
I  cannot  doubt  that  the  court  may  hear  the  defendant  by  affida- 
vit. The  complainant  gives  notice  of  a  motion  for  an  injunc- 
tion on  his  bill,  and  says  the  case  is  pressing,  and  that  he  can- 
not wait  for  an  answer.  The  defendant,  then,  should  be  heard 
in  a  shorter  way  than  by  answer.  Let  the  affidavits  be  read. 

The  first  affidavit  of  Roswell  L.  Colt  states  that  he  has  been 
governor  of  the  society  since  1824.  That  he  has  searched  the 
books  and  papers  of  the  society,  and  finds  no  stock  standing  in 
the  complainant's  name.  That  on  the  31st  of  May,  1827,  ten 
shares  stood  in  the  name  of  Peter  V.  B.  Livingston,  and  that  on 
that  day  they  were  transferred  by  Peter  Kean,  trustee  and  at- 
torney of  Peter  V.  B.  Livingston,  one  share  to  Philip  Ricketts, 
and  nine  shares  to  said  Peter  Kean  ;  that  these  nine  shares  still 
stand  in  the  name  of  Peter  Kean;  that  he  died  intestate,  in 
1828,  and  that  administration  of  his  personal  estate  was  com- 
mitted to  Sarah  S.  Kean,  his  widow,  who  afterwards  married 
Looe  Baker,  who,  and  the  said  Sarah,  now  live  in  the  city  of 
New  York.  That  no  transfer  of  said  shares,  or  any  of  them, 
IKIS  been  made  by  them,  or  either  of  them,  on  the  .books  or  pa- 
pers of  the  society  ;  and  that  no  notice  of  any  such  transfer  has 
ever  been  given  to  the  society,  to  the  deponent's  knowledge  or 
belief.  That  neither  the  said  Peter  Kean,  in  his  lifetime,  nor 
the  said  administratrix,  nor  the  said  Looe  Baker,  nor  the  com- 
plainant, ever  called  for  any  dividends  on  the  said  shares,  or 
requested  any  examination  of  the  affairs  of  the  society,  or  made 
any  complaint;  of  the  acts,  proceedings  or  management  of  the 
society ;  nor  has  the  complainant  remonstrated  to  the  said  socie- 


MARCH  TERM,  1846.  375 

Kean  v.  Colt  et  al. 

iy  against  any  of  its  acts  or  doings.  That  the  deponent  has 
heard,  for  mn-.-.y  years,  that  there  are  disputes  about  the  right  to 
the  said  shares,  and  that  divers  persons  have  claimed  an  in- 
terest therein,  and  that  he  has  always  believed  and  now  be- 
lieves, that  the  only  reason  why  the  dividends  on  the  said 
shares  have  not  been  called  for,  was  the  dispute  about  the  right 
thereto.  That  no  notice  has  ever  been  given  to  the  society 
that  the  rights  to  the  same  have  been  adjusted.  That  the  prin- 
cipal business  of  Puterson  depends  on  the  certain  and  regular 

ipply  of  water  to  the  mills;  and  that  this  water  is  under  the 
entire  charge  of  the  society  and  its  agents;  and  that  the  society 
is  now  engaged  in  making  important  alterations,  and  employ- 
ing a  good  many  hands.  That  there  are  important  lawsuits 
now  pending  between  the  society  and  its  tenants  or  grantees : 
and  one,  vital  to  the  interests  of  the  society,  with  the  Morris 
Canal  and  Banking  Company  ;  and  that  he  believes  that  the 
complainant's  bill  has  been  contrived  by  persons  employed  as 
counsel  for,  or  interested  in  the  stock  of  said  Morris  Canal  and 
Banking  Company,  to  prevent  the  prosecution  of  said  suit  with 
effect.  That  the  whole  stock  of  the  society  is  2269  shares ; 
and  that  he  owns,  either  in  his  own  name  or  in  trust  for  him, 
2019?  shares,  and  that  his  son,  Morgan  G.  Colt,  owns  100 
shares,  and  his  son,  Thomas  O.  Colt,  100  shares.  That  Peter 
V.  B.  Livingston  died  in  1792,  leaving  a  large  number  of  chil- 
dren, and  that  if  he,  in  his  lifetime,  had  given  to  Peter  Kean 
a  power  of  attorney,  it  must  have  ceased  to  operate  at  his 
deatli ;  and  that  the  deponent  has  no  recollection  of  ever  having 
seen  any  such  power  of  attorney. 

The  deposition  of  Joseph  Smith  states  that  he  is,  and  has 
been  4br  some  years,  agent  of  the  society,  and  that  he  has 
charge  of  the  books.  That  there  is  no  stock  standing  in  the 
name  of  John  Kean  on  the  books  of  the  society.  That  10 
shares,  and  no  more,  stood  in  the  name  of  P.  V.  B.  Livingston. 
That  on  the  31st  May,  1827,  P.  Kean,  as  trustee  and  attorney 
for  P.  V.  B.  Livingston,  transferred  one  share  to  P.  Ricketts, 
and  nine  shares  to  P.  Kean,  and  that  these  nine  shares  now 
stand  on  the  books  in  the  name  of  P.  Kean.  That  the  whole 
number  of  shares  of  the  society  is  2269,  standing  on  the  books 
as  follows: 


376  CASES  IN  CHANCERY. 

Kean  v.  Colt  et  al. 

In  the  name  of  R.  L.  Colt 2001? 

"  "     R.  L.Colt,  Jr 10 

«  "     M.G.Colt 100 

«  "     T.  O.Colt...  ...100 


2211? 

Leaving  57?  shares  not  owned  by  Roswell  L.  Colt  and  his  sous. 
That  there  is,  this  day,  standing  to  the  credit  of  Roswell  L. 
Colt,  on  the  books  of  the  society,  $2257.35,  and  that  the  said 
Roswell  L.  Colt  is  not  indebted  to  the  society,  either  on  note, 
bond  or  otherwise,  on  this  llth  December,  1845. 

The  second  affidavit  of  Roswell  L.  Colt,  made  December 
llth,  1845,  states,  among  other  things  not  necessary  to  be  no- 
ticed, that  he  was  not  a  director  till  1814.  That  when  he  be- 
came a  director,  the  affairs  of  the  society  were  in  a  bad  state. 
That  at  a  meeting  of  the  stockholders  in  June,  1814,  the  stock- 
holders, on  his  motion,  took  into  consideration  the  propriety  of 
dissolving  the  society,  and  unanimously  resolved  that  it  was 
inexpedient,  and  that  measures  should  be  adopted  to  increase 
the  funds  of  the  society,  so  -  that  they  may  renew  their  active 
manufacturing  operations,  and  that  the  governor  or  deputy 
governor  be  authorized  to  sell  such  mill  seats,  house  lots,  build- 
ings, &c.,  as,  &c. 

That  on  the  15th  November,  1793,  one  Abijah  Hammond 
was  elected  treasurer,  but  declined  to  give  security,  and  there- 
fore, on  the  15th  April,  1794,  it  was  resolved  that  his  appoint- 
ment be  vacated,  and  that  he  be  desired  to  pay  the  moneys  in 
his  hands  to  the  governor,  and  that  the  governor  receive  the 
same,  or  any  other  money  due  the  society,  and  be  authorized 
to  sell  and  transfer  such  part  of  the  stock  of  the  United  States 
Bank,  standing  in  the  name  of  the  society,  as  will  be  sufficient 
to  pay  the  drafts  of  Mr.  Colt,  the  superintendent,  (the  defend- 
ant, Roswell  L.  Colt,)  or  other  debts  which  he  may  be  author- 
ized to  discharge,  and  that  he  be  vested  with  all  the  powers  of 
cashier  and  treasurer.  That  no  cashier  or  treasurer  was  ever 
after  appointed,  till  lately,  but  the  funds  have  been  in  the  hands 
of  the  agent  of  the  society,  under  the  superintendence  and  con- 
trol of  the  governor  for  the  time  being.  That  no  loss  has  hap- 
pened by  reason  thereof,  and  no  complaint  has  been  made  by 
any  stockholder.  That  lately,  on  the  1st  December,  1845,  the 


MARCH  TERM,  18 40.  377 


Kean  v.  Colt  et  al. 


board  appointed  a  treasurer,  and  have  taken  from  him  sufficient 
security,  approved  by  the  board,  in  $20,000. 

That  the  society  have  disposed  of  the  lottery  right,  and  that 
all  the  moneys  received  for  it  or  on  account  thereof,  have  been 
paid  to  the  society  and  passed  to  the  proper  account  on  the 
books  of  the  society.  That  the  deponent  has  expended  large 
sums  in  erecting  mills,  <&c.,  whereby  the  prospects  of  the  society 
have  been  very  much  improved.  That  no  stockholder  except 
the  deponent  has  advanced  a  cent  to  aid  the  society,  or  improve 
the  property,  but  that  the  deponent  has  had  to  advance  all  his 
energies  aud  a  very  large  amount  of  money  for  this  purpose. 

That  in  February,  1793,  the  directors  appointed  a  superin- 
tendent, with  a  salary  of  $2500  per  annum,  and  furnished  him 
a  suitable  house,  and  authorized  him  to  employ  a  clerk.  That 
the  deponent  was  appointed  agent  for  the  society  in  1814.  That 
the  society  have  erected  a  large  house  on  their  ground  in  Pater- 
son,  which  house  and  grounds  are  now  in  his  occupancy.  That 
the  plants,  shrubbery,  &c.,  are  a  subject  of  charge  by  this  depo- 
nent, to  his  own  account,  and  not  to  the  debit  of  the  society,  and 
is  not  deducted  from  the  profits  of  the  society.  That  the  furni- 
ture and  expenses  of  living  are  paid  for  by  him,  out  of  his  own 
funds,  but  he  says  he  has  never  received  any  compensation  for 
his  services  as  governor,  superintendent,  or  agent,  until  the 
board,  on  the  8th  of  July,  1839,  in  consideration  of  his  services 
for  near  thirty  years,  resolved  that  a  lease  be  executed  for  the 
joint  lives  of  Mr.  and  Mrs.  R.  L,  Colt,  of  the  mansion-house 
and  grounds  within  the  board  fence,  at  a  nominal  rent  of  $100 
a  year,  which  lease  has  since  been  executed. 

That  he  is  now  willing  to  purchase  the  said  house  and  im- 
provements at  cost,  and  the  lauds  attached  thereto,  at  a  fair 
price,  if  the  society  will  make  to  him  a  fair  allowance  for  his 
services,  in  lieu  of  said  lease.  That  the  society  had  out-lands 
which  had  been  nearly  unproductive,  and  have  erected  build- 
ings thereon,  stocked  the  farm  and  improved  it,  and  carried  it 
on,  which,  he  is  advised,  they  had  a  right  to  do;  but  if  there 
has  been  any  loss,  either  in  the  said  mansion-house  or  the  said 
farm,  he  and  his  sons  suffer  about  ninety-eight  per  cent,  thereof, 
and  that  the  profit  or  loss  of  the  said  farm  was  to  go  to  the 
society,  and  not  to  him  individually. 

VOL.  i.  2  A 


CASES  IN  CHANCERY. 


Kent  v.  Colt  et  al. 


That  he  has  never  invested  one  dollar  of  the  society's  money 
in  the  stock  of  the  Bank  of  the  United  States,  and  he  does  not 
recollect  or  believe  that  he  has  received  or  used  any  money  from 
the  society,  except  what  he  has  been  charged  with  by  the 
society.  That  the  society  bought  of  him,  about  1838,  mills,  &c., 
which  he  held,  and  most  of  which  had  been  built  by  him  out 
of  his  own  moneys,  or  moneys  he  had  borrowed  on  his  own 
account,  from  Robert  Oliver  and  others,  to  aid  the  society, 
amounting  to  $155,770.68,  and  also  other  property  of  great 
value  to  the  society,  for  $60,000,  and,  from  other  causes,  be- 
came indebted  to  him  in  a  large  sum  ;  and,  to  secure  him,  the 
society  directed  bonds  and  mortgages  to  be  given  to  him,  but 
that  such  bonds  and  mortgages  were  afterwards  canceled,  and 
that,  on  March  16th,  1840,  the  society  were  indebted  to  him  in 
$305,198.31. 

That  at  a  meeting  of  the  board  of  directors,  on  that  day, 
entries  were  made  in  the  book  of  minutes  of  the  society,  as  fol- 
lows: "An  offer  having  been  made  by  R.  L.  Colt  to  purchase 
certain,  &c.,  for  $200,000,  resolved,  that  the  society  do  agree  to 
sell  to  said  Colt  the  said  house-lots,  rents,  &c.,  and  reversions  in 
fee,  for  $200,000,  as  of  the  1st  February  last;  and  that,  as  to 
the  said  water  rights  where  no  mill  seats  are  conveyed,  the  said 
Colt  and  his  assigns  shall  have  the  privilege  of  using  said  water 
on  any  mill  seat  on  the  tier  of  mill  seats  for  which  they  are 
now  leased,  and  that  said  Colt  be  charged,  on  the  books  of  the 
society,  with  said  $200,000,  as  of  the  1st  February  last." 

That  at  this  meeting,  five  of  the  directors  were  present.  That, 
being  indebted,  at  that  time,  to  the  executors  of  Robert  Oliver, 
he  assigned  the  said  leases,  water  rights,  reversions,  and  mills  to 
them,  in  payment  of  his  debt.  That  this  was  done  openly  and 
fairly,  under  the  directions  of  the  Chancellor.  That  he  has  not 
re-purchased  any  of  the  property  so  assigned  by  him  to  the  said 
executors. 

That  the  board  did  direct  five  bonds  to  be  given  to  him,  in 
all,  $80,000,  to  be  secured  by  a  mortgage,  but  they  were  after- 
wards given  up  and  canceled.  But  the  society  is  indebted  to 
him,  at  this  time,  in  $22,057.35,  and  that  it  will  so  appear 
by  the  books  of  the  society.  That  of  the  stock  belonging  to 
him,  2001  f  shares  stand  in  his  name,  and  that  they  are  not  in- 


MARCH  TERM,  1846.  379 


Eean  v.  Colt  et  al. 


cumbered  in  any  way.  That  he  is  .not  now  embarrassed  in  his 
circumstances.  That  since  his  former  affidavit,  he  has  transfer- 
red ten  shares  to  his  son,  R.  L.  Colt,  Jr. 

The  motion  for  injunction  and  receiver  was  argued  on  the 
bill  and  affidavits. 

B.  Williamson  and  IP.  Halsted,  in  support  of  motion.  They 
cited  1  Hill's  Ch.  R.  390  ;  2  Johns.  Ch.  R.  30,  256  ;  1  Paige 
396;  3  Ibid.  117;  8  Whebt.  421  ;  1  McCord  389;  3  Yerger 
201  ;  8  Pet.  281,  286;  2  Story's  Eg.,  §  1252  ;  4  Russell  272, 
562  ;  3  Paige  222,  233  ;  1  Johns.  Ch.  R.  26  ;  4  Prices  Exch. 
R.  346;  6  Oranck  51  ;  1  Green's  Ch.  R.  190,  191  ;  1  Edw. 
84,  513;  1  Simons  27;  19  Johns.  R.  477;  8  Cow.  387;  4 
Johns.  Oi.  R.  104  ;  Story's  Eq.  PL  190,  191  ;  1  Myln  and  Keen 
377;  Dess.  154;  3  Atk.  564;  2  Story's  Eq.,  §  827,  831,  835, 
836;  2  Sim.  and  Stuart  142;  8  Paige  475;  13  Vesey  105;  2 
Bro.  Ch.  157;  IS.  Vesey  283;  16  J6id.  59;  3  Meriv.  697;  1 
Ball  and  Beatty  75  ;  12  Fes^  4. 


P;  D.  Vroom  and  E.  Vanarsdale,  Sr.,  contra.  They  cited 
Drury  on  Inj.  137,'  192  ;  &  Eng.  Cond.  Ch.  498  ;  1  Myln  and 
Keen  61  ;  Mitf  155  ;  3  P.  Wnis.  33  ;  Ang.  and  Ames  on  Corp. 
316,  344,  345  ;  1  Johns.  Ch.  R.  305  ;  1  Vesey  105,  131  ;  1  Bro. 
Ch.  303;  2  Johns.  Ch.  238;  1  £9.  Co.  Ab.  73;  1  Fern.  31, 
261  ;  1  Mad.  R.  446  ;  1  Hopk.  599  ;  Saxton  192  ;  Gran*'* 
Prac.  332;  7  Fesey  309;  Saxton  157  ;  1  Green's  Ch.  173  ;  6 
Jo/ins.  C/i.  160;  ^4m6fer  209;  £iston  369  ;  4  Johns.  Ch.  21; 
6  Ibid.  19;  1  Coxe's  Ch.  103;  18  Fesey  515;  Saxton  718; 
Cooper's  Eq.  R.  30  ;  12  .£%.  Cond.  Ch.  16  ;  16  Vesey  69,  70; 
2  .Ec/to.  286  ;  2  Pai^e  450,  351  ;  Ibid.  438,  449  ;  6  Johns.  Ch. 
160;  2.  Kent's  Com.  304,  305,  note;  2  JbAn*.  CA.  389;  19 
Johns.  R.  473,  474  ;  1  Hopk.  360,  598  ;  2  JoAn*.  CA.  371  ; 
Saxlon  186  ;  Xm7.  and  Ames  on  Corp.  510,  664  ;  2  ScA.  and 
Lef.  607;  2  J/acf.  CA.  188;  2  £ro.  CA.  158;  13  Vesey  108, 
266. 

THE  CHANCELLOR.  The  motions  are  denied.  To  enter  fully 
into  an  examination  of  the  case  at  this  time  would,  I  think,  be 
unwise.  To  authorize  an  injunction  and  the  appointment  of 
a  receiver,  there  must  be  a  well-grounded  apprehension  of 


380  CASES  IN  CHANCERY. 

•  Tucker  v.  Green. 

injury  about  to  be  done.  I  see  no  sufficient  cause  of  present 
alarm  to  demand  the  interposition  of  the  court.  The  miscon- 
duct alleged  in  the  bill  occurred,  if  at  all,  several  years  since  j 
too  long  since  to  be  the  ground  of  apprehension  of  impending 
mischief.  No  act  is  stated  as  now  threatened,  or  misapplication 

of  funds  as  about  to  be  made. 

Motions  denied. 


ENOCH  G.  TUCKER  v.  FRANCES  GREEN,  ADMINISTRATRIX  OF 
JOHN  D.  GREEN,  WHO  WAS  EXECUTOR,  &c.,  OF  ENOCH 
GREEN. 

1.  The  administratrix  of  an  executor  held  liable  to  a  legatee  under  the  will 
of  which  her  intestate  was  executor,  for  the  proceeds  of  bank  stock  belonging 
to  the  first  estate,  which  was  transferred  by  the  executor  to  himself,  in  his 
own  name,  and  which  came  to  the  hands  of,  and  was  sold  by,  his  adminis- 
tratrix. 

2.  E.  G.  died  in  1827,  and  by  will  gave  several  pecuniary  legacies,  and 
among  them  $500  to  his  grandson,  E.  G.  T.,  a  minor,  to  be  kept  at  interest  by 
the  executor  of  the  will  until  E.  G.  T.  attained  the  age  of  twenty-one,  and 
then  to  be  paid  to  him,  with  the  interest  which  should  have  accrued  thereon. 
And  for  the  purpose  of  carrying  his  will  into  effect,  and  paying  the  debts  and 
legacies,  authorized  the  executor  to  sell  so  much  of  the  real  estate  as  might  be 
necessary.     He  then  gave  all  the  rest  of  his  estate,  real  and  personal,  to  his 
son,  J.  D.  G.,  whom  he  appointed  executor.   The  legacies  amounted  to  $3000. 
The  personal  estate  of  E.  G.  was  appraised  at  $3071.23,  including  thirty-six 
shares  of  Trenton   Bank  stock,  appraised  at  $1260.     In  1829  J.  D.  G.,  as  ex- 
ecutor of  the  will  of  E.  G.,  transferred  to  himself,  in  his  own  name,  the  thirty- 
six  shares  of  stock,  and  they  stood  in   his  own  name  at  his  death,  in  1830. 
No  administration  de  bonis  non,  with  the  will  of  E.  G.  annexed,  was  ever 
granted.    Administration  of  the  personal  estate  of  J.  D.  G.  was  committed 
to  his  widow,  F.  G.     In  1836  she  sold  the  said  stock  for  $1360,  and,  as  ad- 
ministratrix of  J.  D.  G.,  transferred  it  to  the  purchaser.     On  bill  by  E.  G. 
T.,  against  the  administratrix,  &c.,  of  J.  D.  G.,  for  the  payment  of  the  said 
legacy,  it  was  decreed  for  the  complainant. 


In  March,  1827,  Enoch  Green  died,  leaving  a  will,  by  which, 
after  directing  his  just  debts  and  funeral  expenses  to  be  paid,  he 
gave  to  his  daughter,  Maria  Tucker,  wife  of  Samuel  Tucker, 
$500,  for  her  sole  use,  to  be  paid  in  three  months  after  his  de- 
cease ;  and  to  his  daughter,  Susan  Carman,  wife  of  Caleb  Car- 
man, $500,  for  her  sole  use,  to  be  paid  as  soon  as  conveniently 


MARCH  TERM,  1846.  281 

Tucker  v.  Green. 

might  be  after  his  decease;  and  to  his  daughter,  Sarah  Hamil- 
ton, wife  of  Thomas  Hamilton,  $1000,  for  her  sole  and  sepa- 
rate use,  to  be  paid  as  soon  as  conveniently  might  be  after  his 
decease  ;  and  to  his  grandson,  Enoch  G.  Tucker,  $500,  to  be  put 
and  kept  at  interest  by  his  executors,  and  the  survivor  of 
them,  on  good  real  security,  till  his  said  grandson  should  attain 
the  age  of  twenty-one,  and  then  to  be  paid  to  him,  with  the 
interest  which  should  have  accrued  thereon  ;  and  to  his  grand- 
daughter, Frances  Carman,  $500,  to  be  paid  to  her  when  she 
should  attain  the  age  of  eighteen  years;  directing  his  executors 
in  the  meantime  to  place  and  keep  the  same  at  interest  on  good 
real  security,  till  she  should  attain  that  age,  and  to  pay  the  in- 
terest thereof,  yearly,  to  the  mother  of  the  said  Frances.  And 
for  the  purpose  of  carrying  his  will  into  effect,  by  paying  the 
debts  and  legacies  therein  mentioned,  and  for  whatsoever  ends 
and  purposes  might  be  requisite  thereto,  he  authorized  and  em- 
powered his  executors  therein  mentioned,  and  the  survivor  of 
them,  to  sell  and  dispose  of  all  and  singular  his  real  estate,  or 
so  much  thereof  as  might  be  necessary  for  the  purposes  afore- 
said. And  all  the  rest,  residue  and  remainder  of  his  estate,  real 
and  personal,  whatsoever  and  wheresoever,  he  gave,  devised 
and  bequeathed  to  his  son,  John  D.  Green,  his  heirs  and  assigns 
'forever.  And  he  appointed  his  said  son,  John  D.  Green,  and  his 
nephew,  Armitage  Green,  executors  of  his  said  will. 

John  D.  Greeu  proved  the  will,  and  acted  as  executor,  and 
as  executor  and  residuary  legatee  and  devisee,  took  possession 
of  all  the  estate,  real  and  personal.  Armitage  Green  did  not 
prove  the  will  or  act  as  executor.  The  will  was  proved  on  the 
3d  of  May,  1827.  On  the  same  day  an  inventory  of  the  per- 
sonal estate  of  the  testator  was  filed  in  the  office  of  the  surrogate 
of  Hunterdon,  amounting  to  $3071.23|,  consisting  of 

A  bond  of $1,000  00 

36  shares  Trenton  Bank  stock,  appraised  at 1,260  00 

Cash  in  bank 245  86 

Notes,  due-bills,  and  book  accounts 180  37£ 

And  furniture,  &c 385  00 

$3,071  23  J 

On  the  19th  of  January,  1829,  J.  D.  Green,  as  executor  of 
the  will  of  Enoch  Green,  transferred  to  himself  in  his  own  name 


382  CASES    IN  CHANCERY. 

Tucker  v.  Green. 

the  thirty-six  shares  of  stock  in.  the  Treuton  Bank,  and  they 
stood  in  his  name  at  his  death.     In  1830,  John  D.  Green  died 
intestate,  and  administration  of  his  personal  estate  was  commit 
ted  to  his  widow,  Frances  Green,  the  defendant  in  this  cause. 
No  administration  de  bonis  non,  with  the  will  of  Enoch  Green 
annexed,  was  ever  granted. 

In  January,  1831,  Frances  Green,  as  administratrix,  &c.  of 
John  D.  Green,  filed  an  inventory  and  appraisment  of  his  per- 
sonal estate  in  the  office  of  the  surrogate  of  Hunterdon,  amount- 
ing to  $7341.91,  including  the  said  thirty-six  shares  of  bank 
stock,  appraised  at  $38  a  share,  $1368.  In  January,  1835, 
Frances  Green,  as  administratrix,  &c.,  of  John  D.  Green,  sold  the 
said  bank  stock  for  $1360.80,  and  transferred  it  to  the  purchaser. 

Enoch  G.  Tucker  attained  the  age  of  twenty-one  on  the  7th 
July,  1838,  and  in  1841  exhibited  his  bill  against  Frances 
Green,  administratrix,  &c.,  of  John  D.  Green,  deceased,  who  was 
executor  of  the  will  of  Enoch  Green,  deceased,  for  the  recovery 
of  the  said  legacy  bequeathed  to  him  by  the  will  of  Enoch 
Green,  deceased.  An  answer  was  put  in  by  the  defendant,  and 
the  cause  was  heard  on  the  pleadings  and  proofs.' 

J.  C.  Potts,  for  the  complainant. 
J.  A.  Simpson,  for  the  defendant. 

THE  CHANCELLOR.  If  anything  occurred  in  the  course  of 
John  D.  Green's  administration  of  the  personal  estate  of  Enoch 
Green,  deceased,  which  would  show  that  the  transfer  of  the  bank 
stock  to  himself  was  right  and  lawful,  and  that  it  thereby  be- 
came rightfully  his  property,  the  defendant  should  have  shown 
it.  Personal  property  of  the  estate  of  Enoch  Green,  deceased, 
the  testator,  sufficient  for  the  payment  of  this  legacy,  was  con- 
verted by  John  D.  Green,  the  executor  of  his  will,  to  his  own 
use,  and  is  traced  to  the  hands  of  the  defendant,  as  administra- 
trix of  the  personal  estate  of  John  D.  Green.  If  there  is  any 
reason  why  it  should  not  be  applied  to  the  payment  of  this  leg- 
acy, she  should  have  shown  it. 

I  am  of  opinion  that  the  proceeds  of  this  stock  may  be  reached 
in  a  suit  by  the  legatee  against  the  administratrix  of  the  personal 
estate  of  John  D.  Green,  deceased.  5  Rand.  51  ;  Elm.  Dig. 
165,  §  6;  1  Story's  Eq.,  §  581.  Decree  for  complainant 


CASES  IN   CHANCEBY. 


JUNE  TEEM,  1846. 


BENJAMIN  P.  SOPER  AND  MARY,  HIS  WIFE,  v.  PETER  KIPP. 

1.  By  writing  under  seal  executed  by  heirs-at-law,  it  was  agreed  that  P.,  one 
of  them,  should  have  the  out-lots  for  his  share,  and  that  the  other  three  should 
lake  for  their  shares  the  homestead  farm  ;  and  that  P.  would  execute  to  the 
other  three,  separately,  a  release  for  the  share  which  the  three  might  agree 
that  each  of  them  should  have  in  the  homestead,  when  a  certain  mortgage 
given  by  the  intestate  on  one  of  the  out-lots  should  be  discharged  ;  and  that 
aa  soon  as  P.  should  execute  such  releases,  the  others  should  execute  releases 
to  him  for  the  share  which  it  was  thereby  agreed  he  should  have.     P.  took 
possession  of  the  share  assigned  to  him  by  (he  agreement.     Afterwards,  by 
an  agreement  between  the  three,  a  certain  part  of  the  homestead  was  assigned 
to  M.,  one  of  the  three,  and  the  other  two  released  the  same  to  her,  and  M. 
released  to  the  other  two  all  her  interest  in  the  residue  of  the  homestead 
Previous  to  the  agreement  among  the  four,  H.,  one  of  the  heirs,  had  given 
a  mortgage  on   his  undivided  interest  in  the  whole  real  estate.     M.  filed  a 
bill  against  P.  for  the  specific  performance  of  the  agreement  on  his  part  to 
release  to  her  the  share  so  assigned  to  her,  tendering  a  release  of  her  interest 
in  his  share.     Neither  of  the  said  mortgages  was  paid  at  the  time  of  the  fil- 
ing of  the  bill ;  but  the  mortgage  given  by   the  intestate  was  paid   before   the 
hearing  of  the  cause,  and  the  mortgage  given  by  H.  on  his  undivided  interest 
in  the  estate  had  been  foreclosed,  and  his  said  interest  sold ;  and  the  com- 
plainant produced  at  the  hearing  an  agreement  by  the  purchaser  to  abide  by 
the  agreement  for  partition,  and  to  execute  releases  under  it.     Held  that  per- 
formance of  an  agreement  to  execute  a  release  of  real  estate  may  be  decreed, 
and  that  performance  may  be  decreed  if  the  party  asking  it  is  able  and 
willing,  at  any  time  before  the  decree,  to  perform  his  part  of  the  contract. 

2.  It  was  referred  to  a  master  to  ascertain  whether  the  complainant  wan 
able  to  procure  a  release  to  P.  from  the  present  owner  of  H.'s  share,  and  from, 
the  remaining  heirs. 

383 


384  CASES  IN  CHANCERY. 

Soper  v.  Kipp. 

3.  Specific  performance  of  an  agreement  among  heirs  for  partition  cannot 
be  resisted  on  the  ground  that  the  defendant,  in  taking  the  part  assigned  to 
him,  contemplated  the  sale  of  it,  and  that  by  reason  of  mortgages  existing  at 
the  time  of  the  agreement  he  was  unable  to  sell  the  part  assigned  to  him,  he 
knowing  of  the  morlgages  at  the  time  of  the  agreement,  and  one  of  them, 
given  by  the  intestate,  being  paid  before  the  hearing,  and  the  other,  given 
by  one  of  the  heirs  on  his  undivided  interest  in  the  whole  estate,  having  been 
foreclosed  and  such  interest  sold,  and  the  complainant  proffering  a  release 
from  the  purchaser  of  all  his  interest  in  the  share  to  the  defendant.  Held, 
that  under  the  circumstances,  the  other  heirs  were  not  necessary  parties 
to  the  bill. 

Peter  A.  Kipp  died,  intestate,  leaving  a  widow,  Mary  Kipp, 
and  five  children,  viz.,  Abraham  Kipp,  John  Kipp,  Henry 
Kipp,  Peter  Kipp  and  Mary  Kipp,  and  leaving  real  estate, 
which  descended  to  his  said  children.  John  Kipp  sold  his  un- 
divided interest  in  the  real  estate  to  his  brother  Abraham.  An 
agreement  in  writing,  under  seal,  was  then  made,  dated  May 
17th,  1842,  between  Peter  Kipp  of  the  first  part,  and  Abraham, 
Henry  and  Mary  Kipp  of  the  second  party  reciting  that  they 
had  mutually  agreed  that  Peter  should  have  for  his  share  of 
the  real  estate,  all  the  out-lots ;  and  that  Abraham,  Henry  and 
Mary  should  take  for  their  shares,  (including  the  share  Abra- 
ham had  bought  from  John,)  the  ho-mes-tead  farm  ;  and  agKee- 
ing  that  Peter  and  his  wife  should  and  would  execute  to  the 
parties  of  the  second  part,  separately,  a  release  for  the  share 
which  the  parties  of  the  second  part  might  agree  each  one 
should  have  in  the  homestead,  when  the  mortgage  given  by  the 
intestate  on  one  of  the  out-lots,  for  $1500,  should  be  discharged, 
or  such  arrangement  in  relation  thereto  be  made  as  should  be 
satisfactory  to  Peter  ;  and  that  as  soon  as  Peter  should  execute 
such  releases,  the  parties  of  the  second  part,  with  the  wives  of 
Henry  and  Abraham,  should  execute  releases  to  Peter  for  the 
share  vs  ^ica  it  was  thereby  agreed  lie  should  have. 

Peter  took  possession  of  the  share  assigned  to  him  by  the 
agreement. 

Mary  afterwards  married  Benjamin  P.  Soper,  and  by  an 
agreement  between  Abraham  and  Henry,  and  Soper  and  his 
wife,  Abraham  and  Henry  and  their  wives,  by  deed  of  January 
6th,  1844,  granted  and  released  to  Soper  and  his  wife  &2$» 
acres  of  the  homestead,  by  metes  and  bounds,  as  the  share  of 


JUNE  TERM,  1846.  385 

Soper  v.  Kipp. 

Mary;  and  in  consideration  thereof,  Soper  and  his  wife  granted 
and  released  to  Abraham  and  Henry  all  the  residue  of  the 
homestead. 

The  $1500  mortgage  was  given  by  the  intestate  for  the  ben- 
efit of  one  Browning,  and  Browning  gave  the  intestate  a  mort- 
gage of  the  same  amount  on  property  in  Hoboken. 

On  the  19th  October,  1841,  Henry  mortgaged  his  undivided 
interest  in  the  real  estate  of  the  intestate  to  one  Hall  for  $1000, 
payable  in  three  years,  with  interest. 

The  widow,  Abraham  and  Peter  administered  on  the  person- 
al estate  of  the  intestate.  They  foreclosed  the  Browning  mort- 
gage, and  in  the  spring  of  1843,  the  Browning  property  was 
sold  under  the  decree,  and  was  bought  by  the  administrators,  or 
one  of  them,  for  the  estate;  and  Abraham  took  a  deed  for  it  for 
the  benefit  of  the  estate,  to  pay  off  and  satisfy  the  mortgage  given 
by  the  intestate. 

On  the  5th  January,  1844,  Soper  and  wife  tendered  to  Peter 
a  conveyance  and  release  of  all  their  interest  in  the  out-lots, 
and  requested  him  to  release  to  them  the  share  of  the  home- 
stead which  had  been  assigned  and  released  to  them  by  Abra- 
ham and  Henry  ;  and  presented  to  Peter  the  draft  of  a  proper 
deed  to  be  executed  by  him  ;  and  also  presented  to  Peter  a  bond 
and  mortgage  for  $15uO,  executed  by  Soper,  conditioned  for  the 
payment  to  Peter  of  one-fifth  of  any  sum  that  might  remain  due 
on  the  $1500  mortgage,  in  case  of  the  insufficiency  of  the  per- 
sonal properly  and  the  Browning  lands  to  pay  the  same.  Peter 
refused  to  comply  with  the  request. 

Soper  and  wife  thereupon,  on  the  15th  of  April,  1844,  filed 
their  bill,  stating  the  foregoing  facts,  and  stating  that  Peter,  as 
one  of  the  administrators,  has  in  his  hands  a  considerable 
amount  of  money  belonging  to  the  estate;  that  the  intestate 
left  a  large  personal  estate,  and  owed  debts  to  a  small  amount 
only  ;  and  that  no  settlement  of  the  administrators'  accounts 
had  been  made  in  the  Orphans'  Court;  that  on  the  said  purchase 
of  the  Browning  property  by  Abraham,  for  the  benefit  of  the 
estate,  Abraham,  acting  for  the  estate,  gave  Browning  the  privi- 
lege of  selling  the  property  in  such  portions  as  might  be  most 
advantageous  for  the  estate  and  for  Browning;  and  that  there 
had  been  paid  on  the  said  mortgage  $600 ;  and  that  the  resi- 


386  CASES  IN  CHANCERY. 

Soper  v.  Kipp. 

due  of  the  Browning  property  is  sufficient,  as  the  complainants 
are  informed  and  believe,  to  pay  the  balance  due  on  said  §1500 
mortgage  given  by  the  intestate. 

The  bill  prays  that  Peter  may  be  decreed  to  perform  the 
agreement,  and  to  execute  a  release  of  the  share  so  assigned  to 
the  complainant  Mary  ;  the  complainants  tendering  themselves 
ready  to  perform  on  their  part,  and  to  make  such  arrangement, 
in  relation  to  the  $1500  mortgage,  as  the  court  may  direct,  if 
that  already  made  and  offered  should  be  decreed  insufficient. 

The  defendant  put  in  his  answer,  and  proofs  were  taken. 

Before  the  hearing  of  the  cause,  the  $1500  mortgage  was 
fully  paid,  and  the  mortgage  given  by  Henry,  on  his  undi- 
vided interest  iu  the  real  estate  of  the  intestate,  had  been  fore- 
closed and  his  said  interest  sold  under  the  decree,  and  Mrs. 
Howard  had  become  the  purchaser  thereof.  She  knew,  before 
she  bought,  of  the  agreement  for  partition,  and  of  certain  re- 
leases having  been  executed  under  it;  and  the  complainants 
produced  at  the  hearing  an  agreement  executed  by  Mrs.  How- 
ard, dated  June  5th,  1845,  to  abide  by  the  agreement  for  parti- 
tion, and  to  execute  releases  under  it. 

P.  D.  Vroom,  for  the  complainants,  cited  1  Pow.  on  Mort. 
18;  10  Johns.  R.  414;  7  Paige  77;  8  Ibid.  473;  2  Wheat. 
301,  304,  note;  6  Had.  R.  161 ;  Colbert  on  Parties  11 ;  3  P. 
Wms.  311 ;  1  Ves.  and  Beam  550. 

W.  Pennington,  for  the  defendant,  cited  2  Story's  Eq.,  §§ 
741,  742,  748-51,  769-74,  778;  2  Paige  15;  1  Pet.  283, 
308,  383;  1  Green's  Ch.  R.  199,  208;  38  Vency  10;  3 
Paige  94;  17  Vesey  398;  4  Bro.  Ch.  519;  Saxton  274,  281, 
321. 

THE  CHANCELLOR.  The  bill  is  filed  by  Mary  and  her  hus- 
band, to  whom  a  share,  by  metes  and  bounds,  has  been  assigned 
bince  the  agreement,  against  Peter,  to  whom  a  share,  by  metes 
and  bounds,  was  assigned  by  the  agreement,  to  compel  Peter  to 
execute  to  the  complainants  a  release  of  his  interest  in  the  por- 
tion assigned  to  them  ;  they  having  tendered  to  Peter  a  release 
oi  their  interest  iu  the  share  assigned  to  him. 


JUNE  TERM,  1846.  387 

Soper  v.  Kipp. 

It  is  contended,  on  the  part  of  the  complainants,  that  the 
agreement  is  distributive  in  its  character,  and  binds  Peter  to 
execute  to  each  of  the  other  share-owners  separately,  a  release 
of  his  interest  in  any  share,  whenever  it  should  be  set  oft'  by 
metes  and  bounds,  by  agreement  between  the  other  three  ;  and 
that,  as  that  has  been  done  in  reference  to  Mary's  share,  the 
complainants  are  entitled  to  call  on  the  defendant  for  a  release 
of  his  interest  in  that  share,  without  reference  to  any  releases 
between  Peter  and  the  other  share-owners.  If  this  be  so,  there 
is  no  want  of  proper  parties  in  the  cause.  I  am  inclined  to 
think  this  is  the  true  construction  of  the  agreement. 

The  defendant  alleges  that  his  object  in  selecting  the  out-lots  • 
for  his  share  was,  that  he  might  sell  them,  and  that,  by  reason 
of  the  encumbrances,  he  could  not  immediately  accomplish  that 
object. 

Two  mortgages  existed  at  the  time  of  the  agreement,  and 
the  weight  of  the  evidence,  to  my  mind  is,  that  the  existence 
of  both  was  known  to  the  defendant.  This  takes  from  the  case 
all  idea  that  the  defendant  was  drawn  into  the  agreement  by 
concealment  from  him  of  anything  which,  if  known  to  him, 
might  have  prevented  him  from  entering  into  it.  The  only 
ground  left  the  defendant  on  this  part  of  the  case  is,  that  he 
misapprehended  the  effect  of  Henry's  mortgage;  and  that,  when 
he  came  to  carry  out  his  object  in  selecting  the  out-lots,  he  found 
himself  embarrassed  by  that  mortgage.  The  question  then 
arises,  can  the  case  be  permitted  to  turn  on  proof  of  the  object 
which  the  defendant  had  in  selecting  the  out-lots?  Nothing  is 
said  of  that  object  in  the  agreement.  It  would  leave  agreements 
for  partition,  and  the  action  of  a  court  upon  them,  to  stand  on 
very  undeiiuable  ground,  if  they  could  be  influenced  by  proof 
of  any  particular  object  which  one  of  the  parties  had  in  agree- 
ing to  take  the  part  assigned  to  him,  and  that  that  object  had 
failed. 

The  case,  on  this  part  of  it,  must  stand  on  the  same  ground 
as  if  the  defendant's  object  was  to  keep  the  part  selected  by 
him.  He  agreed  to  take  that  part;  and  the  court  cannot  look 
beyond  that,  and  inquire  whether  he  meant  to  keep  it  or  to  sell 
it.  The  defendant's  possession  of  the  part  he  agreed  to  take 
has  not  been  disturbed.  By  the  agreement  he  was  to  release 


388  CASES  IN  CHANCERY. 

Soper  v.  Kipp. 

to  the  others,  separately,  the  share  which  the  others  might  agree 
that  each  of  them  should  have  in  the  homestead,  when  the 
mortgage  given  by  the  intestate  should  be  discharged,  or  such 
arrangement  relating  thereto  be  made,  as  should  be  satisfactory 
to  him.  This  mortgage  has  now  been  discharged  ;  and  it  is  not 
material,  as  to  the  relief  prayed,  that  it  was  not  discharged  at 
the  commencement  of  the  suit.  So  as  to  the  mortgage  given  by 
Henry,  on  his  undivided  interest  in  the  real  estate.  If  the  de- 
fendant's share  has  been  relieved  from  the  encumbrance  of  that 
mortgage ;  or,  if  the  complainants  are  now  able  to  procure  a 
release  to  be  executed  to  the  defendant  by  the  present  owner  of 
that  undivided  interest,  of  all  the  interest  of  that  owner  in  the 
share  taken  by  the  defendant,  the  only  object  which  the  court 
can  consider  the  defendant  as  having  had  in  taking  the  share  he 
selected  can  now  be  accomplished  ;  and  the  time  that  has  elapsed 
is  not  material.  And  if  it  can  now  be  done,  it  is  not  material 
whether  it  was  offered,  or  could  have  been  done  at  the  com- 
mencement of  the  suit,  at  least  not  as  to  the  relief  prayed. 

A  reference  will  be  ordered,  to  ascertain  whether  the  com- 
plainants are  able  to  procure  the  release  of  Mrs.  Howard,  the 
present  owner  of  Henry's  undivided  share,  of  all  her  interest  in 
the  share  assigned  to  the  defendant,  and  to  ascertain  how  the 
title  now  stands.  ' 

I  think  it  better,  also,  in  this  stage  of  the  cause,  to  direct  the 
master  to  ascertain  whether  the  complainants  are  able  to  procure 
the  release  of  Abraham  to  be  executed  to  the  defendant. 

If  it  shall  appear  that  the  complainants  are  able  to  procure 
the  releases  to  be  executed  to  the  defendant,  but  that  the  defend- 
ant puts  himself  in  a  position  to  prevent  their  delivery  to  him, 
by  refusing  to  execute  proper  releases  himself,  it  appears  to  me 
that  the  case  will  call  for  such  action  of  the  court  as  will,  not- 
withstanding, give  the  complainants  the  relief  they  seek.  The 
question  of  costs  is  reserved. 

Order  accordingly. 


JUNE  TERM,  1846.  389 


Paterson  v.  Paterson. 


ELIZA  PATERSON  v.  WILLIAM  PATERSON. 

Alimony  pending  the  suit,  and  money  to  defray  the  expenses  of  it,  allowed, 
on  a  bill  by  the  wife  against  the  husband  for  support  and  maintenance,  charg- 
ing that  he  had  abandoned  her  and  refused  to  maintain  and  provide  for  her. 


Bill  by  the  wife  against  the  husband  for  support  and  main- 
tenance, on  the  ground  that  the  husband  had  abandoned  her 
and  refused  to  maintain  and  provide  for  her.  The  bill  stated 
the  pecuniary  circumstances  of  the  husband,  and  the  amount 
of  his  daily  earnings,  and  prayed  also  for  alimony  pending  the 
suit,  and  money  to  carry  on  the  suit.  The  bill  states  that  the 
defendant  is  earning,  by  his  labor,  from  $1.87£  to  $2  a  day ; 
that  he  has  from  $700  to  $900  in  a  savings  bank  in  New 
York  ;  that  he  sold  his  household  goods,  worth  $300,  and  owns 
a  house  and  lot  in  Newark,  which  would  rent  for  $125  a  year. 
That  at  one  time  he  agreed  to  give  the  complainant  $500  for 
her  support,  but  that,  shortly  after,  he  refused  to  give  her  any- 
thing, or  provide  for  her  in  any  way,  and  confessed  a  judgment 
to  one  Lewis,  for  the  purpose,  as  she  believes,  of  covering  his 
real  estate.  That,  shortly  after  confessing  the  said  judgment, 
he  told  her  he  now  had  his  property  so  fixed  that  she  could  get 
nothing  from  him,  and  that  he  never  would  pay  a  cent  towards 
her  support,  unless  compelled  by  law  to  do  so. 

The  application  for  intermediate  alimony  and  money  to  de- 
fray the  expenses  of  the  suit  was  heard  on  motion. 

Affidavits  were  read  on  the  part  of  the  complainant,  in  sup- 
port of  the  application. 

The  affidavit  of  the  defendant  was  read  in  opposition,  stating 
that  he  was  compelled  to  break  up  house-keeping  by  the  con- 
duct of  his  wife,  in  removing,  from  time  to  time,  and  secreting 
in  some  private  place  in  Newark,  the  beds  and  bedding  and 
other  articles  of  furniture,  without  his  knowledge,  and  that  he, 
immediately  after,  provided  board,  for  the  complainant,  in  Mul- 
berry street,  Newark,  where  she  boarded  at  his  expense  for  ten 
or  twelve  days;  and  that,  immediately  after,  he  provided  per- 


390  CASES  IN  CHANCERY. 

Paterson  v.  Paterson. 

raanent  board  for  her  in  Market  street,  Newark,  suitable  to  his 
circumstances,  to  which  place  she  removed,  and  that  he  in- 
tended permanently  to  board  her  there.  That  without  his 
knowledge  or  consent,  she  left  this  place  in  two  days,  and  went 
to  her  nephew's,  in  New  York,  and  remained  there  against  his 
wish  and  consent.  That  from  there  she  went  to  live  with  one 
of  her  relations  in  Milton,  Essex  county,  New  Jersey,  where 
she  remained  for  six  weeks  or  two  months,  still  without  his 
consent.  That  she  left  his  bed  and  board  without  his  consent, 
and  so  continued,  although  he  was  willing  and  did  provide 
board  for  her,  suitable  to  his  and  her  circumstances.  That  he 
has  real  estate  in  Newark,  worth  about  $1000,  subject  to  a 
judgment  for  $650.  That  he  has  in  the  savings  bank  of  New 
York  about  $600,  but  that  he  has  no  command  of  or  means  of 
getting  it,  in  consequence  of  the  complainant's  having  secretly 
taken  the  deposit  book.  That  he  receives  $1.75  a  clay  for  his 
labor. 

A.  0.  Boylan,  for  the  application,  cited  4  Paige  516,  643;  2 
Ibid.  621  ;  1  Edw.  317,  255;  1  John.  Ch.  R.  108,  364,  441  j 
1  Edw.  62  ;  2  Paige  108 ;  Saxton  386 ;  4  Dess.  33 ;  Elm.  Dig. 
140,  §  10. 

J.  Chetwood,  contra. 

THE  CHANCELLOR.  Under  the  circumstances  of  this  case, 
I  think  it  will  be  proper  to  direct  a  monthly  allowance  of  $12, 
to  be  computed  from  the  first  day  of  May  last,  and  to  continue 
till  the  further  order  of  the  court,  to  be  paid  by  4 he  defendant 
to  the  complainant,  monthly,  two  months'  allowance  to  be  paid 
on  the  first  day  of  July  next ;  and  the  payment  of  the  further 
sum  of  $50  to  the  complainant  or  her  solicitor,  towards  defray- 
ing the  charges  of  the  suit,  on  her  part. 

Order  accordingly. 


JUNE  TERM,  1846.  391 

Brick  et  al.  v.  Getsinger  et  al. 


JOSHUA  BEICK  ET  AL.  v.  JOHN  GETSINGER  ET  AL. 

1.  A  large  tract  of  pine  land,  owned  in  connection  with  a  glass-factory,  for 
ihe  ordinary  uses  and  purposes  of  which  the  owners,  from  time  to  time,  cut 
wood  from  the  pine  land,  was  mortgaged.     After  the  giving  of  the  mortgage, 
a  fire  swept  over  a  large  portion  of  the  tract,  killing  the  timber  standing  on 
it.     The  mortgagors  commenced  cutting  down  the  burnt  timber,  proposing  to 
nit  it  all  down,  alleging  that  it  was  necessary  to  do  so,  as  well  to  save  the 
..  jod  from  rotting,  as  for  the  permanent  benefit  of  the  estate  in  reference  to 
the  new  growth.     The  mortgagees  filed  a  bill  and  obtained  an  injunction 
against  the  cutting.     The  bill  did  not  pray  a  foreclosure,  the  whole  money 
not  being  then  payable.     On  answer,  stating  the  facts  as  to  the  burning,  and 
the  propriety  of  felling  the  burnt  timber,  and  offering  to  give  other  security 
for  an  amount  equal  to  the  value  of  the  burnt  wood  which  the  mortgagors 
proposed  to  cut,  a  reference  was  ordered  to  ascertain  such  value,  with  a  view 
of  directing  such  security  to  be  given. 

2.  It  was  said  by  the  Chancellor,  that  if-  a  large  proportion,  in  value,  of 
pine  wood-land,  mortgaged,  be  burnt  over,  and  it  be  proper,  to  save  the  burnt 
wood  from  rotting,  and  for  the  permanent  benefit. of  the  estate,  in  reference  to 
the  new  growth,  that  the  burnt  wood  be  cut  off — the  land  being  worth  but 
little,  without  wood   on  it — it  would   be  right  that  the  burnt  wood  so  cut 
should  be  applied  towards  paying  the  mortgage. 


On  the  16th  of  August,  1845,  John  Getsinger  and  Joseph 
Getsinger  gave  to  the  complainants  their  bond,  conditioned  for 
the  payment  of  $11,755.23,  in  two  equal  payments,  at  six 
and  twelve  months,  with  interest,  and,  to  secure  the  payment 
of  the  bond,  gave  to  the  complainants  a  mortgage  of  the  same 
date,  on  the  glass-factory  buildings  and  lots  in  Port  Elizabeth, 
Cumberland  county  (describing  them),  containing  ten  acres; 
a  lot  of  39  acres,  a  lot  of  315  acres,  a  lot  of  45  acres,  a  lot 
of  50  acres,  a  lot  bought  of  Samuel  Compton.  by  deed  of  May 
24th,  1833;  a  lot  of  315  acres,  a  lot  of  148  acres,  a  lot  of  23 
acres,  a  lot  of  101  acres,  a  lot  of  193  acres,  a  lot  of  6  acres 
a  lot  of  10  acres,  a  lot  of  20  acres,  a  lot  of  102  acres,  a  lot 
of  425  acre*,  a  lot  of  100  acres,  a  lot  of  18  acres,  a  lot  of  38 
acres,  a  lot  of  10  acres,  a  lot  of  10  acres,  a  lot  of  23  acres, 
a  lot  of  350  acres,  a  moiety  of  a  lot  of  171  acres — all  in  the 
township  of  Maurice  River,  in  said  county;  and  a  lot  of  200 
acres,  and  a  lot  of  380  acres,  in  the  township  of  Millville,  in 


392  CASES  IN  CHANCERY. 

Brick  et  al.  v.  Getsinger  et  al. 

said  county;  and  a  lot  in  Port  Elizabeth,  of  a  quarter  of  an 
acre. 

The  bill  states  that  $1437.39  of  the  principal  was  paid  on 
the  14th  of  February,  1846,  and  that  $4418.40  of  the  principal 
and  interest  of  the  first  payment  is  due,  by  reason  of  which  the 
estate  mortgaged  has  become  absolute,  subject  only  to  the  equity 
of  redemption. 

On  the  6th  of  February,  1846,  the  Getsingers  and  their  wives, 
for  $1250,  stated,  in  the  deed,  to  be  the  consideration  therefor, 
sold  and  conveyed  the  mortgaged  premises  to  Charles  Town- 
send,  of  Maurice  Hiver,  and  George  B.  Cooper,  of  Philadelphia. 
The  bill  charges  that  the  premises  consist,  in  part,  of  wood- 
land, covered  with  wood  and  timber,  growing  thereon,  and  that, 
without  the  wood  and  timber,  the  complainants'  security  is 
greatly  weakened  and  diminished,  and  that,  since  the  convey- 
ance to  Townsend  and  Cooper,  they  and  their  workmen  have 
cut  down  and  carried  off  from  the  premises  a  large  quantity  of 
wood  and  timber;  that  there  is  still  standing  on  the  premises,  a 
large  quantity  of  timber  and  trees,  and  that  Townseud  and 
Cooper  intend  to  cut  down  and  carry  away  the  same. 

The  bill  prays  that  Townsend  and  Cooper  may  be  restrained 
from  cutting  down  or  removing  from  the  premises  any  wood  or 
timber  growing  thereon,  or  from  removing  from  the  premises 
any  of  the  wood  or  timber  already  cut  down,  and  from  commit- 
ting any  further  waste.  The  bill  does  not  pray  a  foreclosure  or 
sale. 

The  joint  and  several  answer  of  the  defendants  has  been 
put  in,  in  which  the  Getsingers  say  that  the  bond  and  mort- 
gage was  given,  not  for  money  loaned  or  property  bought, 
but,  in  part,  to  secure  debts  to  some  of  the  mortgagees, 
and,  in  part,  to  indemnify  the  mortgagees,  or  some  of  them, 
against  notes  or  securities  on  which  they,  or  some  of  them, 
were  liable,  and  that,  as  they  have  reason  to  believe,  the 
actual  amount  due  will,  on  a  just  and  proper  account,  fall  short 
of  the  nominal  amount  of  the  bond  and  mortgage.  The  de- 
fendants deny  that  only  $1437.39  has  been  paid,  an.i  say  that, 
on  the  17th  of  November,  1845,  the  Getsingers  gave  to  Lee 
and  Bailey,  two  of  the  complainants,  a  judgment  bond  for 
$2433.43,  on  which  judgment  was  entered,  and  t)  \t  "xecu- 


JUNE  TERM,  1846.  393 

Brick  et  al.  v.  Getsinger  et  al. 

tion  was  issued   on   the  judgment,  and   that  the  execution  was 
paid  in  full  before  the  bill  was  filed  ;  and  they  insist  that  the  sum 
included  in  the  judgment  and  execution,  was  for  the  same  debt 
included  in  the  mortgage,  and  is  to  be  deducted  therefrom.    The 
Getsingers  say  that  on   the  28th  January,  1845,  and  after  the 
said  execution  was  in   the  hands  of  the  sheriff,  they  had  ship- 
ped, on   board  a  schooner  lying  in   Maurice  river,  701  £  boxes 
of  glass  to  their  agent  in   New  York,  and   Brick,  one  of  the 
complainants,  told   John   Getsinger  that  the  sheriff  had  seized 
or  would   seize  said   glass  on  the  said  execution,  and  obtained 
from  the  said  John  an  order  for  the  glass ;  and  that  the  com- 
plainants, or  some  of  them,  obtained   the  glass  on  that  order, 
and  have  since  sold   it;  and  John  says  he  is  unable  to  read 
English,  and  does  not  know  precisely  what  the  order  contained, 
but  he  says  it  was  obtained  from  him  on  the  representation  that 
the  value  of  it  should  be  applied  in  payment  of  said  execution, 
and  that  Bickley,  one  of  the  complainants,  expressly  promised 
him  it  should  go  towards  the  execution  ;  and  the  defendants  say 
the  glass  was  worth  $1028,  for  which  the  defendants  insist  they 
are  entitled  to  credit  on  the  bond  and  mortgage.  The  defendants 
admit  the  conveyance  from  the  Getsingers  to  Townsend  and 
Cooper  for  $1250,  subject  to  the  mortgage.     They  say  that  the 
mortgaged  premises  consist  of  the  glass-works  and  lots  on  which, 
they  are  situated,  at  Port  Elizabeth,  in  Cumberland  county,  and 
of  sundry  lots  and  tracts  of  land  in   that  county,  which  have- 
been  bought  from  time  to  time  for  the  use  of  the  glass-works,, 
comprising  in  the  whole  about  3000  acres,  the  great  portion  of 
which  is  woodland,  on  which  is  timber  and  wood  growing,  much 
of  which  is  fit  for  use,  and  the  residue  is  of  younger  growth. 
That  the  motive  which  induced  the  purchase  of  so  many  tracts 
of  land,  was  to  secure  a  sufficiency  for  the  permanent  supply  of 
the  glass-works;  that  lest  the  consumption  should  at  any  time 
exceed  the  natural  increase,  it  was  the  habit  of  those  carrying  on 
the  works  heretofore,  to  purchase  a  quantity  of  wood  occasional- 
ly, in  addition  to  that  procured  from  the  property ;  and  the  de- 
fendants, Townseud  and  Cooper,  say  they  intend  to  pursue  the 
same  course ;  and  they  further  say  that  if  without  such  aid  the 
natural  growth  of  the  wood  and  timber  should  be  insufficient 
to  afford  a  permanent  supply,  there  is  wood  and  timber  enough 
VOL.  i.  2s 


394  CASES  IN  CHANCERY. 

Brick  et  al.  v.  Getsinger  et  al. 

on  the  property  to  supply  the  demand  for  at  least  three  years, 
without  the  purchase  of  any  additional  timber  land.  That  of 
the  said  property,  about  300  acres  of  wood  and  timber  land 
were,  in  the  spring  of  1845,  overrun  by  fire,  which  greatly  in- 
jured and  destroyed  the  growing  wood  ;  and  that  when  enjoined 
from  cutting,  they  were  engaged  with  their  workmen  in  cutting 
and  felling  part  of  the  wood  which  had  been  thus  injured  and 
destroyed  by  fire ;  that  they  had  cut  about  25  acres  of  the  same, 
and  were  using  the  wood  for  the  ordinary  purposes  of  the  glass- 
works, and  not  committing  any  waste  upon  the  property;  that 
the  burnt  wood  is  unfit  for  market,  and  can  be  advantageously 
applied  to  no  other  purpose  than  supplying  glass  or  iron-works; 
and  that  it  is  of  great  importance  to  the  property,  and  the  own- 
ers thereof,  that  the  same  should  be  cut  without  delay  ;  that 
the  greater  part  of  the  wood  on  the  land  burnt  is  pine,  which, 
after  being  affected  with  fire,  soon  decays  and  falls,  and  is  sel- 
dom worth  cutting  after  the  second  summer.  That  the  residue 
of  the  wood  and  timber  on  the  burnt  land  is  principally  oak, 
which  by  reason  of  the  fire  becomes  very  hard,  and  continues  so 
till  it  begins  to  decay.  That  about  the  second  -sum mer  after  the 
fire,  the  young  scions  begin  to  grow  up  from  the  roots,  and  the 
trees  begin  to  decay,  and  afterwards  to  fall;  and  if  not  cut  be- 
fore they  fall,  the  scions  will  be  greatly  injured  if  not  destroyed 
by  the  falling  of  the  timber.  That  the  intention  was  to  cut  off 
the  said  burnt  timber,  so  as  to  prevent  its  further  decay  and  in- 
jury, and  to  apply  it  to  the  ordinary  use  of  the  glass-works,  as 
they  apprehend  they  had  a  right  to  do.  That  they  were  not 
cutting,  nor  did  they  intend  to  cut,  on  any  other  portion  of  the 
property  at  this  time  ;  and  that  to  continue  the  injunction  would 
be  injurious  to  the  defendants  and  to  the  property.  That  at  the 
time  the  mortgage  was  given,  the  premises  were  used  for  the 
purposes  of  a  glass  factory ;  that  the  glass-works  were  on  the 
premises  at  the  time,  and  were  and  had  been  in  operation  at 
and  before  the  mortgage  was  given ;  and  that  the  morignge 
was  take*i  with  the  express  understanding  and  knowledge  that 
the  mortgaged  property  was  then  used,  and  would  continue  to 
be  used,  lor  making  glass;  and  they  submit  that  as  long  as 
they  continue  to  use  the  property  in  this  way,  and  as  all  pru- 
dent owners  would  do  under  like  circumstances,  they  cannot  be 


JUNE  TERM,  1846.  395 

Brick  et  al.  v.  Gelsinger  et  al. 

considered  as  committing  waste,  or  impairing  the  security  of  the 
complainants;  and  they  deny  that  they  have  any  intention  to 
do  so.  On  the  contrary,  they  insist  that  it  would  be  for  the 
l^eneBt  of  all  parties  that  the  said  wood  should  be  cut  down  and 
removed  without  delay,  and  that  it  would  be  better  to  give  it 
away  than  to  suffer  it  to  remain  in  its  present  condition.  They 
say  that  it  is  a  great  injury  and  inconvenience  to  them  to  be  de- 
prived of  the  use  of  the  wood  and  timber  at  this  time ;  that  their 
furnace  is  in  blast,  and  they  are  now  obliged  to  purchase,  at 
great  loss,  wood  to  supply  their  fires,  or  suffer  great  loss  from 
the  blowing  out  of  the  furnace.  That  they  have  committed  no 
waste,  unless  the  cutting  aforesaid  may  be  considered  waste, 
which  they  deny  ;  and  that  they  do  not  intend  to  commit  any 
waste,  or  to  cut  down  or  carry  away  any  timber  or  trees,  except 
for  the  purposes  aforesaid.  They  deny  that  the  cutting  and 
using  the  wood  and  timber  so  burnt  and  injured  would,  in  any 
wise,  diminish  the  security  of  the  complainants,  but  say  that,  to 
suffer  the  same  to  remain,  would  do  so,  more  especially  if  living 
and  growing  wood  and  timber  had  to  betaken  for  the  use  of  the 
works ;  and  they  insist  that  if,  by  reason  of  the  mortgage,  no 
wood  or  timber  whatever  can  be  cut  on  the  property  for  the  use 
of  the  glass  works,  the  value  of  the  property  will  be  materially 
diminished.  That,  since  the  payment  admitted  by  the  bill, 
without  any  allowance  for  payments  claimed  by  the  defendants, 
the  property  is  now  a  better  security  for  the  amount  due,  as 
stated  by  the  bill,  than  it  was  when  the  mortgage  was  given. 
That  they  have  no  desire  or  intention  to  affect  the  security  of 
the  complainants,  but  are  desirous  of  prosecuting  their  legitimate 
business  in  the  ordinary  way  ;  and  that,  rather  than  suffer  the 
inconvenience  and  loss  that  must  result  to  them  from  remaining 
in  their  present  situation,  they  are  willing  to  giv.?,  and  offer  to 
give,  under  the  direction  of  the  court,  undoubted  security  for  the 
payment  of  such  sum  as,  on  a  fair  and  proper  adjustment,  may 
appear  to  be  due  on  the  bond  and  mortgage. 

On  this  answer  a  motion  was  made  to  dissolve  the  injunction* 

P.  D.  Vroom,  for  the  motion. 
W.  Halsted,  contra. 


396  CASES  IN  CHANCERY. 

Brick  et  al.  v.  Getsinger  et  al. 

THE  CHANCELLOR.  I  think  there  is  no  ground  for  appre- 
hension that  the  defendants  have  any  design  to  lessen  the  security 
of  the  complainants  by  waste  or  improper  cutting.  The  diffi- 
culty in  the  case  has  arisen,  no  doubt,  from  the  fact  that  three 
hundred  acres  of  the  woodland  has  been  burnt  over,  and  the 
wood  and  timber  standing  thereon  greatly  injured.  The  defend- 
ants say  it  was  their  intention  to  cut  off  the  wood  and  timber 
from  this  burnt  district  of  three  hundred  acres ;  and  that  it 
ought  to  be  cut  off,  as  well  to  prevent  its  loss  by  decay,  as  for 
the  benefit  of  the  property.  I  am  not  informed  by  the  bill  or 
answer  how  much  wood  the  glass-works  ordinarily  use  in  a 
season,  nor  of  the  value  of  the  wood  as  it  now  stands  on  the 
burnt  district ;  nor  can  I  say  with  certainty  that  the  residue  of 
the  property  is  sufficient  to  pay  the  mortgage. 

If  a  large  proportion  in  value  of  pine  woodland  mortgaged 
be  burnt  over,  and  it  be  proper,  to  save  the  wood  and  for  the 
benefit  of  the  land,  that  the  burnt  wood  be  cut  off,  the  lands 
themselves  being  worth  but  little  without  wood  on  them,  it 
would  be  right  that  the  wood  so  burnt  and  cut  should  be  applied 
towards  paying  the  mortgage. 

In  the  absence  of  more  particular  information,  it  seems  to  me 
it  would  be  safe  for  the  court — regard  being  had  to  the  rights 
of  the  mortgagees — to  avail  itself  of  the  suggestion  of  the  de- 
fendants Townsend  and  Cooper,  so  far  as  to  direct  security  to  be 
given  by  them  for  an  amount  equal  to  the  value  of  the  burnt 
wood  which  they  propose  to  cut.  To  that  end,  a  reference  will 

be  ordered,  to  ascertain  the  value. 

Order  accordingly. 

CITED  in  Coggill  v.  Mtiburn  Land  Co.,  10  0.  E.  Or.  92. 


JUNE  TERM,  1846.  397 


Obert  v.  Obert  el  al. 


THROCKMORTON  OBERT  v.  PETER  OBERT  ET  AL. 

1.  On  bill  for  partition,  injunction  granted,  restraining  the  party  in  posse*- 
sion  from  committing  waste  by  cutting  timber. 

2.  If  the  title  of  the  complainant  in  a  bill  for  partition  is  denied,  the  court 
may  retain  the  bill  to  give  him  an  opportunity  to  try  his  title  at  law. 

3.  An  equitable  partition  may  be  made  so  as  to  assign  a  portion  of  the  land 
on  which  improvements  have  been  made  to  him  who  made  them,  and  if  he 
has  cut  off  the  timber  from  a  part  of  the  land  adjoining  the  part  improved, 
the  court  may  direct  that  the  land  from  which  the  timber  has  been  cut  be 
valued  as  it  was  with  the  timber  on  it  and  included  in  the  assignment  to  him. 

4.  In  special  cases,  one  tenant  in  common  may,  on  the  application  of  the 
other,  be  enjoined  from  committing  .waste,  but  the  jurisdiction  is  sparingly 
exercised. 

5.  On  bill  for  partition,  by  a  tenant  in  common  owning  a  twentieth  part,  an 
injunction  was  granted  against  the  tenant  in  common  in  possession,  restrain- 
ing him  from  cutting  timber.    His  answer  showed  that  he  was  owner  of  eight- 
twentieths  ;  that  he  had  made  improvements  to  the  amount  of  $2000 ;  and 
that  he  only  intended  to  cut  the  wood  and  timber  from  two  acres  near  the 
barn,  which  he  had  commenced  doing  when  the  injunction  was  served ;  and 
he  denied  all  intention  to  commit  waste.     The  injunction  was  dissolved. 

The  bill  is  for  the  partition  of  a  farm  of  two  hundred  acres, 
of  which  it  claims  that  George  Obert,  deceased,  died  seized, 
among  the  heirs-at-law  of  the  said  decedent;  and  for  an  injunc- 
tion, restraining  Peter  Obert,  who  is  in  possession,  from  cutting 
wood  and  timber.  The  complainant,  Throckmorton  Obert,  is 
one  of  five  children  of  a  son  of  the  decedent,  who  died  in  the 
lifetime  of  the  decedent;  and  the  decedent  left  four  children 
him  surviving,  viz.,  Peter  Obert,  Paul  Obert,  Nancy  Obert  and 
George  Obert. 

The  bill  states  that  the  decedent  died  in  March,  1820,  and 
that  the  farm  descended  as  follows:  one-fifth  to  each  of  the  said 
children,  and  one-fifth  to  the  complainant  and  his  brothers  and 
sisters,  as  the  heirs-at-law  of  the  deceased  son,  John  Obert; 
that  after  the  death  of  his  grandfather,  the  complainant's  bro- 
ther George  died,  whereby  his  interest  was  increased  to  one- 
twentieth  of  the  farm.  That  Peter  Obert  possessed  himself  of 
the  whole,  and  claimed  to  hold  it  all  adversely  to  the  other 


398  CASES  IN   CHANCERY. 

Obert  v.  Obert  et  al. 

heirs.  That  the  complainant  brought  ejectment  for  his  share, 
and  that  one  Mahlon  Hammell,  a  tenant  of  Peter,  was  admit- 
ted a  defendant  in  that  suit;  that  the  said  Hammell  set  up,  in 
defence,  a  holding  under  Peter,  and  a  deed  from  D.  Smith  and 
wife  to  Peter,  dated  June  5th,  1822,  in  consideration  of  $500, 
and  a  deed  from  Peter,  as  administrator  of  the  said  George 
Obert,  deceased,  to  Smith,  dated  June  4th,  1822,  for  $500,  pur- 
porting to  have  been  made  in  pursuance  of  an  order  of  the  Or- 
phans' Court  of  Middlesex  county,  to  sell  lands  for  the  payment 
of  debts.  That  a  verdict  was  rendered  for  the  plaintiff  in  the 
ejectment,  on  which  judgment  was  entered  in  February,  1843; 
and  that,  by  writ  of  possession,  the  complainant  was  put  in 
legal  possession  of  his  twentieth  part  undivided. 

That,  during  the  ejectment,  his  sister  Jane  and  her  husband 
conveyed  her  twentieth  to  the  complainant,  and  his  aunt  Nancy 
conveyed  her  fifth  to  him  ;  and  Paul  Obert,  as  he  is  informed 
and  believes,  conveyed  his  fifth  to  the  defendant  Peter,  so  that 
the  complainant  now  owns  six-twentieths,  the  defendant  Peter 
eight-twentieths;  George  Obert,  son  of  the  decedent,  four-twen- 
tieths ;  Nancy,  sister  of  the  complainant,  and  her  husband, 
Samuel  Magie,  one-twentieth ;  and  Susan,  a  sister  of  the  com- 
plainant, and  her  husband,  Stephen  Verity,  one-twentieth. 
That  William  Simpson  claims,  through  the  defendant  Peter, 
some  interest  in  the  farm. 

The  bill  then  charges  that  the  personal  estate  of  the  decedent 
was  sufficient  to  pay  his  debts;  that  the  deed  from  the  defend- 
ant Peter,  as  administrator,  to  Smith,  and  all  the  proceedings 
previous  to  the  sale,  were  fraudulent  and  void;  and  th-.it  Smith 
was  an  irresponsible  person,  hired  by  Peter  to  bid  off  the  pro- 
perty at  the  administrators'  sale  and  convey  it  to  Peter.  That 
Peter  has  refused  to  concur  in  making  a  partition,  and  was,  at 
the  filing  of  the  bill,  either  by  himself  or  in  connection  with 
Simpson,  felling  and  carting  off  the  wood  and  timber,  and  dis- 
posing of  it  to  his  own  use,  and  was  committing  great  waste  and 
other  irreparable  injury  and  mischief  to  the  premises. 

The  bill  prays  an  account  of  the  wood  cut,  and  a  partition, 
and  an  injunction  against  cutting  and  carting  off  the  wood  and 
timber,  and  from  committing  any  other  waste;  and  that  the 
title  of  the  complainant,  having  been  settled  at  law,  may  be 


JUNE  TERM,  1846.  319 


Obert  v.  Obert  et  al. 


confirmed  and  quieted  ;  and  that  proper  conveyances  may  be 
made.  And  that  in  case  the  court  shall  deem  it  necessary  to 
etay  the  general  partition  until  the  titles  may  be  settled  as  be- 
tween said  parties  and  claimants,  then  that  the  share  of  the 
complainant,  or  at  least  his  twentieth  settled  in  said  ejectment, 
may  be  now  divided  off,  without  waiting  for  the  settlement  of 
all  or  any  of  the  questions  that  may  arise  between  the  other 
co-tenants. 

On  a  petition  presented  to  the  Chancellor  before  the  filing  of 
the  bill,  saying  that  the  complainant  had  not  time  for  the  pro- 
per drafting  of  the  bill,  and  stating  the  general  facts  contained 
in  the  bill,  and  that  neither  Peter  nor  Simpson,  as  the  petitioner 
was  informed  and  believed,  was  able  to  respond  in  damages, 
both  being  insolvent  and  bankrupt,  an  injunction  was  granted 
February  7th,  1844,  enjoining  Peter  and  Simpson,  their  work- 
men, &c.,  from  cutting  down  or  destroying  the  timber  or  other 
trees  growing  on  the  premises,  or  any  part  thereof,  and  from 
taking  any  wood  or  timber  lying  thereon,  or  any  part  thereof, 
and  from  doing  further  waste. 

The  separate  answer  of  Peter  Obert,  filed  July  llth,  1844, 
admits  that  he  administered  ;  states  that  the  personalty  was  in- 
sufficient to  pay  the  debts,  and  that  the  proceedings  preparatory 
to  a  sale  of  the  lands  were  all  just  and  bona  fide.  States  that 
on  the  3d  June,  1822,  he  sold  the  farm  to  Smith  for  $500, 
without  any  secret  or  other  agreement  that  Smith  should  buy 
in  the  same  for  him.  That  at  the  sale  the  farm  stood  tor  a  long 
time  on  the  bid  of  James  Dunham  of  $300.  That  he  took 
extraordinary  pains  to  induce  bidding;  that  he  urged  Smith, 
among  others,  to  buy,  telling  him  and  them  that  the  property 
was  worth  more;  and  that,  finally,  when  all  other  inducements 
seemed  to  fail,  he  told  Smith  he  need  not  run  any  risk,  and 
that  if  he  should  buy  the  farm  at  less  than  $800,  and  should 
become  tired  of  his  bargain,  he,  the  defendant,  would  take  it 
off  his  hands;  and  that  the  farm,  after  all  others  had  ceased  to 
bid,  was  struck  off  to  Smith  for  $500,  no  one  bidding  more. 
That  on  the  4th  June,  1822,  he  conveyed  to  Smith  in  fee,  and 
not  on  any  secret  or  other  trust  or  confidence  that  Smith  should 
hold  for  him,  the  defendant;  that  Smith  bought  bona  fide,  and 
with  lawful  and  just  right  to  retain  it.  That  Smith  did  repent, 


400  CASES  IN  CHANCERY. 

Obert  v.  Obert  et  al. 

and  apprehended  trouble  from  the  second  wife,  the  widow  of  the 
decedent,  and  proposed  to  him,  Peter,  to  convey  to  him,  for  the 
same  sum,  but  he  denies  that  Smith  was  under  any  obligation — 
moral,  legal,  secret  or  otherwise — to  convey  to  him  ;  and  that 
on  June  5th  Smith  conveyed  to  him  ;  and  he  submits  that  in 
this  there  is  nothing  repugnant  to  law  or  equity.  He  states  the 
principal  vouchers  showing  the  debts  of  the  decedent,  and  that 
he  is  unable  to  produce  the  other  vouchers ;  that  all  the  vouchers 
were  delivered  'to  the  surrogate,  to  enable  him  to  state  the  ad- 
ministration account,  and  that  very  few,  if  any  of  them,  other 
than  those  he  has  set  out,  were  ever  returned  to  him  ;  and  that 
he  knows  not  what  has  become  of  them.  That  the  lands  of 
which  the  decedent  died  seized,  were  in  detached  pieces,  and 
but  a  small  portion  of  them  was  enclosed  by  fence  of  any  sort. 
That  some  of  them  were  scarcely  worth  enclosing,  the  wood 
having  been  cut  off  and  wasted,  and  the  land,  in  general,  nofc 
being  arable.  That  after  he  bought  from  Smith,  he  borrowed 
money  from  Ann  Van  Beuren,  and  .gave  his  bond  for  it,  and  a 
mortgage  on  the  premises,  describing  them  as  in  the  adminis- 
trator's deed  to  Smith,  and  in  the  deed  from  Smith  to  him. 
That  almost  immediately  thereafter  several  persons  (naming 
them)  claimed  different  portions  of  the  land  included  in  the 
mortgage  as  theirs,  and  as  not  belonging  to  the  estate  of'the  de- 
cedent. The  claimants  and  portions  so  claimed  are  as  follows  : 

David  Freeman 8i4e  acres. 

J.  S.  Vanarsdalen 7i60     " 

Henry  Obert 35**,    " 

Heirs  of  Robinson  Thomas 14        " 

That  on  a  careful  survey  and  examination,  it  was  found  that 
these  several  portions  belonged  to  the  claimants,  respectively, 
and  were  no  part  of  the  estate  of  the  decedent.  That  on  the 
10th  May,  1835,  he  bought  the  portion  owned  by  Freeman  for 
$45,  and  it  was  conveyed  to  him  by  Freeman  and  wife,  by 
deed  of  that  date;  that  on  the  15th  December,  1829,  he  bought 
the  portion  owned  by  Vanarsdalen,  for  $50,  and  it  was  con- 
veyed to  him  by  Vanarsdalen,  by  deed  of  that  date;  that  on 
the  20th  April,  1830,  he  bought  the  portion  owned  by  Henry 
Obert,  and  it  was  conveyed  to  him  by  Obert's  attorney,  there- 
unto lawfully  authorized,  by  deed  of  that  date,  for  $116;  and 


JUNE  TERM,  1816.  401 

Obert  v.  Obert  et  al. 

that  he  made  a  verbal  contract  with  the  heirs  of  Robinson 
Thomas,  for  their  portion,  but  has  not  yet  been  able  to  obtain  a 
deed  therefor.  That,  after  deducting  these  portions,  the  farm 
contains  but  about  120  acres,  being  all  the  lands  of  which  the 
decedent  died  seized,  except  certain  lots  (describing  them)  not 
brought  in  question  by  the  bill. 

That  on  the  15th  of  February,  1834,  he,  by  deed,  for  a  valu- 
able consideration,  conveyed  to  Lewis  Slover  about  70  acres  of 
the  premises  in  the  bill  mentioned,  and  that  Slover  took  posses- 
sion, and  built  a  dwelling-house,  and  made  divers  improvements 
thereon,  and  resided  there;  and  that  the  same  has  been  since, 
by  several  mesne  conveyances,  co.ivey.ed  to  William  Simpson; 
and  that  Simpson  is  now  the  owner  of  it,  and  has  owned  it 
since  February,  1839. 

He  says  that,  in  March,  1837,  he  demised  to  one  George 
Hammell  a  part  of  the  premises  mentioned  in  the  bill  (describ- 
ing it),  containing  about  60  acres,  and  that  said  Hammell  was 
never  in  possession  of  any  other  of  the  real  estate  of  the  dece- 
dent, George  Obert,  since  the  death  of  said  Obert. 

He  admits  that,  in  December,  1842,  the  complainant  obtained 
a  verdict  in  ejectment  for  a  twentieth  part  of  the  lands  of  which 
Hammell  was  in  possession  under  the  demise  aforesaid,  and 
that  judgment  was  entered  on  the  verdict;  but  he  insists  that 
the  verdict  was  unjust,  and  founded,  in  a  great  measure,  on  false 
and  garbled  testimony,  and  a  suppression  of  the  truth ;  and  that 
the  verdict  and  judgment  cannot  be  conclusive  on  him  in 
equity;  that  the  complainant  has  thought  fit  to  give  to  a  court  of 
equity,  by  his  bill,  cognizance  of  the  whole  matter,  and  that  he 
cannot  recover  in  this  court  contrary  to  equity. 

That  Ann  Van  Beuren  died  in  September,  1839,  and  that 
her  administrator  foreclosed  the  mortgage  given  by  him,  Peter, 
to  her;  and  that,  on  the  19th  of  October,  1842,  a  final  decree 
for  sale  was  made ;  and  that  the  sheriff,  by  virtue  of  a  fi.  /a., 
issued  under  that  decree,  sold  the  premises  to  the  said  William 
Simpson,  and  conveyed  the  same  to  him,  by  deed  dated  May 
19th,  1843,  for  $495,  being  the  whole  of  the  premises  mentioned 
in  the  complainant's  bill. 

That  Simpson  resides  in  New  York,  and  is  universally  be- 
lieved to  be  a  man  of  large  estate,  real  and  personal ;  and  that 


402  CASES  IN  CHANCERY. 

Obert  v.  Obert  et  al. 

at  no  time  has  he  been  suspected  or  believed  to  be  a  bankrupt, 
or  insolvent.  That  he,  the  defendant  Peter,  is  in  possession  of 
the  premises,  by  the  permission  of  Simpson,  and  at  his  will ; 
that  Simpson  is  his  son-in-law,  and  that  he  has  charge  of  the 
premises  for  Simpson.  That  when  he  bought  the  premises  from 
Smith,  and  took  possession,  the  buildings  were  in  a  ruinous  con- 
dition— the  house  ready  to  fall  down,  being  propped  up  by  poles 
and  stakes  ;  the  fences  destroyed,  and  everything  gone  to  wreck. 
That  the  defendant  Peter  built  a  new  house,  barn,  and  out- 
houses, erected  fences,  and  bought  lime  for  the  land,  and  that 
his  expenses,  exclusive  of  his  labor,  exceeded  §2000. 

He  denies  any  waste  of  the  premises,  or  of  the  wood  or  tim- 
ber growing  thereon,  or  any  threat  to  commit  waste.  He  says 
that,  to  pay  a  tax  of  eight  dollars,  buy  manure  for  the  land,  and 
for  fencing  stuff',  he  concluded  to  clear  a  small  piece  of  about 
two  acres,  and  that,  accordingly,  in  the  early  part  of  the  winter 
before,  he  engaged  three  men  to  cut  wood  on  the  said  two-acre 
strip,  near  the  barn.  That  wood,  not  exceeding  eight  or  ten 
cords,  was  cut  and  carried  away,  and  that  about  three-quarters 
of  a  cord  of  the  cut  wood  now  remains  on  the  ground  ;  that 
he  intended  to  clear  the  whole  of  said  two  acres,  when  the 
injunction  was  served  on  him,  and  that  good  husbandry  and 
convenience  required  said  strip  to  be  cut  off. 

He  says  that  the  whole  real  estate  was  insufficient  to  pay  the 
debts,  and  that  there  still  remains  due  to  him,  $1131.95,  with 
interest  from  July,  1825,  from  the  estate  of  the  decedent,  and 
he  annexes  to  his  answer  a  copy  of  his  final  account,  allowed 
by  the  Orphans'  Court,  showing  that  the  said  sum  is  still  due 
him.  He  denies  that  Smith  was,  in  any  shape,  an  agent  for  him 
in  the  purchase,  or  that  Smith  bought  under  any  device,  ar- 
rangement, or  understanding  with  him,  and  denies  that  the 
Supreme  Court  ever  adjudged  the  deed  from  him,  as  adminis- 
trator, to  Smith,  to  be  void,  and  denies  that  he  was  ever  made 
a  defendant  in  any  action  of  ejectment  brought  by  the  complain- 
ant, for  the  recovery  of  the  premises,  or  any  part  thereof. 

The  answer  of  William  Simpson  states,  among  other  things 
not  material  to  our  present  purpose,  that  in  February,  1839,  he 
bought  a  tract  of  70  acres  (describing  it),  from  Peter  Obert,  who 
was  iu  possession  thereof,  as  owner  in  fee,  he  having  bought  it 


JUNE  TERM,  1846  403 


Obert  v.  Obert  et  al. 


from  Lewis  Slover  ;  and  that,  for  a  valuable  consideration  paid 
by  him  to  said  Obert,  Obert  conveyed  to  him  the  said  70  acres. 
That  said  tract  is  a  part  of  the  laud  mentioned  in  the  complain- 
ant's bill.  That  when  he  so  bought,  he  had  no  knowledge, 
belief  or  suspicion  of  the  complainant's  claim  thereto,  or  to  any 
part  thereof;  but  perceiving  and  understanding  that  the  prem- 
ises had  been  sold  under  an  order  of  the  Orphans'  Court,  he 
believed  that  all  the  interest  of  George  Obert,  deceased,  pu.-^ed 
to  the  purchaser,  and  was,  by  mesne  conveyances,  transmitted 
to  and  vested  in  Peter  Obert,  son  of  George  Obert,  deceased, 
and  he  relied  on  the  public  and  judicial  acts  of  the  Orphans' 
Court.  He  denies  all  knowledge  of  any  fraud  in  the  accounts 
of  the  administrator  or  in  the  order  for  sale.  States  his  purchase 
at  the  sheriff's  sale  on  the  foreclosure  of  the  Van  Beuren  mort- 
gage, and  that  the  said  mortgage  and  decree  included  the  lands 
he  had  bought  of  Peter  Obert ;  and  that  to  protect  himself,  he 
bought  them  at  the  sheriff's  sale  for  $495,  and  paid  the  money 
to  the  sheriff;  that  the  sheriff,  by  deed  of  May  19th,  1843,  com- 
veyed  the  said  premises  to  him  in  fee;  that  the  lauds  so  con- 
veyed to  him  by  the  sheriff,  include  all  the  lands  mentioned  in 
the  bill.  That  he  does  not  know  whether  Magie  and  wife,  or 
Nancy  Obert,  made  the  conveyances  to  the  complainant  of  their 
shares,  as  stated  in  the  bill,  but  insists  that  if  they  did,  the 
conveyances  are  void  as  against  him.  Says  that  neither  Nancy 
nor  Magie  and  wife  have  been,  either  actually  or  constructively, 
in  possession  since  June,  1822;  and  that  the  premises  have 
been  held  since  that  time  by  divers  persons  adversely  to  them. 
That  the  defendant,  Peter  Obert,  is  now  in  possession  by  his  per- 
mission and  at  his  will.  He  asserts  the  right  to  cut,  but  denies 
that  any  \\;aste  has  been  committed  ;  says  he  put  the  premises 
in  the  possession  and  care  of  the  defendant,  Peter  Obert,  and 
instructed  him  to  use  the  same  as  good  husbandry  requires; 
and  that  he  is  of  opinion  that  the  strip  of  woodland  near  the 
barn,  of  about  two  acres,  on  which  alone  some  wood  has  been 
cut,  ought  to  be  cleared. 

He  says  that  it  appears  from  the  bill  itself,  that  the  complain- 
ant has  not  exhibited  his  claim  to  the  lands  within  twenty 
years  next  after  his  title  or  cause  of  action,  if  he  had  any,  ac- 
crued ;  and  that  being  an  innocent  purchaser  for  a  valuable 


404  CASES  IN  CHANCERY. 

Obert  v.  Obert  et  al. 

consideration,  and  without  notice  of  such  dormant  or  concealed 
claim,  he  pleads  the  statute  of  limitations  in  bar.  He  denies 
his  bankruptcy  or  insolvency,  and  says  he  has  a  clear  income  of 
more  than  sufficient  to  support  his  family,  from  unencumbered 
real  estate. 

On  the  24th  December,  1845,  a  petition  on  the  part  of  the 
defendants  was  presented  to  the  court,  stating  the  filing  of  the 
bill  of  the  complainant,  and  the  petition  for  an  injunction,  and 
the  answers  of  the  defendants ;  and  that  in  the  term  of  Octo- 
ber, 1844,  the  defendants,  by  their  counsel,  moved  before  the 
late  Chancellor  that  the  injunction  be  dissolved,  for  reasons 
stated  in  the  petition  j  and  that  the  argument  of  the  motion  was 
had  in  that  term  ;  and  that  the  Chancellor  left  Trenton  without 
announcing  any  decision  from  the  bench.  That  neither  the 
defendants  nor  their  counsel  received  information  of  any  decis- 
ion of  the  Chancellor  till  about  three  months  thereafter,  when 
their  counsel  discovered  in  the  chancery  clerk's  office  a  writing, 
signed  by  the  Chancellor,  as  follows:  "Let  the  injunction  be 
modified,  so  as  to  limit  it  to  timber  not  necessary  for  the  ordi- 
nary uses  of  the  farm;"  dated  October  28th,  1844. 

The  petition  further  states  that  no  more  formal  order  was 
prepared  for  the  signature  of  the  late  Chancellor.  That  if  the 
said  writing  is  to  be  considered  as  an  order  of  the  court,  the  pe- 
titioners consider  it  erroneous.  That  the  injunction  has  not 
been  modified,  but  remains  in  its  original  shape.  It  prays  a 
re-hearing,  or  else  that  the  court  will  entertain,  06  origine,  the 
motion  to  dissolve  the  injunction. 

A  certificate  is  annexed  to  the  petition,  signed  by  two  coun- 
sel, saying  that  they  are  of  opinion  that  a  re-hearing  ought  to 
be  granted  as  prayed  in  the  petition.  An  order  was  thereupon 
made  that  a  motion  to  dissolve  the  injunction  be  brought  to  argu- 
ment on  ten  days'  notice. 

The  motion  was  argued  at  the  March  Term,  1846. 

W.  Scott,  for  the  motion. 
R.  S.  Field,  contra 

THE  CHANCELLOR.  The  combination  of  facts,  as  gathered 
1'-  .11  the  bill  and  answers,  upon  which,  as  it  seems  to  me,  the 


JUNE  TERM,  1846.  405 

Obert  v.  Obert  et  al. 

present  motion  must  be  decided,  are  as  follows:  George  Obert 
died,  the  bill  says,  in  March,  1820 — the  answer  says  in  1821 — 
intestate,  seized  of  a  farm  of  120  acres,  leaving  four  child- 
ren him  surviving,  and  five  grauchildren,  the  children  of 
a  son  who  died  in  his  lifetime.  The  complainant  is  one 
of  the  said  five  grandchildren,  and  the  defendant  Peter  G. 
Obert  is  another  of  the  said  grandchildren.  After  the  death 
of  the  intestate,  one  of  the  five  granchildren  died,  unmar- 
ried, and  without  issue,  by  which  the  shares  of  the  complain- 
ant and  the  defendant  Peter,  respectively,  were  increased  to 
a  twentieth  ;  and  the  bill  states  that,  by  purchases  of  other 
shares,  the  complainant  became  entitled  to  six-twentieths,  the 
defendant  Peter  to  eight-twentieths,  and  that  George  Obert  is 
entitled  to  four-twentieths,  and  each  of  two  other  granchildren, 
to  one-twentieth.  The  defendant  Peter  administered,  and,  on 
the  4th  of  June,  1822,  by  order  of  the  Orphans'  Court  of  Mid- 
dlesex, sold  the  farm,  for  the  payment  of  debts,  to  D.  Smith. 
On  the  5th  of  June,  1822,  Smith  conveyed  the  farm  to  the  de- 
fendant Peter.  On  the  15th  of  February,  1834,  Peter  conveyed 
70  acres  of  the  farm  to  one  Slover,  who  took  possession  thereof, 
and  built  a  dwelling-house  and  made  other  improvements  there- 
on ;  and  this  tract  of  70  acres,  by  mesue  conveyances  from 
Slover,  became  vested  in  the  defendant  Simpson,  in  February, 
1839.  Previous  to  1835 — the  precise  time  when  does  not  appear 
— the  defendant  Peter  mortgaged  the  farm  to  Ann  Van  Beuren. 
On  the  19th  of  October,  1842,  a  final  decree  for  the  sale  of  the 
premises  under  this  mortgage,  was  made,  and,  at  the  sheriff's 
sale  thereof,  May  19th,  1843,  the  premises  were  bought  by  Simp- 
son, for  $495.  In  March,  1837,  Peter  rented  60  acres  to  George 
Hammell,  and  the  complainant  in  this  bill  brought  an  ejectment 
against  Hammell.  Hammell  appeared  and  defended.  The 
consent  rules  were  exchanged  September,  1837.  In  December, 
1842,  a  verdict  for  a  twentieth  part  was  obtained  against  Ham- 
mell in  the  said  ejectment,  and  in  February,  1843,  judgment 
was  entered  on  the  verdict,  and  a  writ  of  possession  was  exe- 
cuted. The  bill  says  that,  during  the  ejectment,  the  complain- 
ant bought  two  other  shares,  but  it  does  not  say  at  what  time 
during  the  ejectment.  The  bill  was  filed,  and  the  injunction 
granted  in  February,  1844. 


406  CASES  IX  CHANCERY. 

Obert  v.  Obert  et  al. 

The  defendant  Simpson  says  he  is  an  innocent  purchaser,  for 
a  valuable  consideration,  and  without  notice  of  any  such  dor- 
mant claim  as  is  set  up  by  the  complainant.  The  defendant 
Peter  went  into  possession  of  the  whole  farm,  on  getting  his 
deed  from  Smith,  and  continued  in  possession  of  the  whole, 
claiming  title,  till  he  sold  the  70  acres  to  Slover,  in  1834,  and 
that  has  been  held  adversely  ever  since;  and  Peter  remained  in 
possession  of  the  residue,  by  himself  or  his  tenant,  claiming 
adversely,  till  Simpson  bought  at  the  sheriff's  sale,  under  the 
Van  Beuren  mortgage,  in  1843,  which  mortgage  was  given  by 
Peter,  and  the  title,  as  claimed  adversely  against  the  heirs,  is 
now  all  in  Simpson,  and  Peter  occupies  under  him. 

The  first  question  is,  is  the  title  of  the  complainant  to  an 
interest  in  the  whole  farm,  the  premises  of  which  he  seeks  par- 
tition, sufficiently  established  to  enable  this  court  to  proceed 
with  the  partition,  or  to  authorize  the  continuance  of  the  in- 
junction? The  complainant  in  this  suit,  by  ejectment  against 
a  tenant  of  60  acres  under  Peter,  recovered  a  judgment  for  a 
twentieth  part  of  the  60  acres.  The  70  acres  had  been  sold  by 
Peter,  in  1834;  no  ejectment  has  been  brought  for  that;  and 
about  twenty-two  years  have  elapsed  since  the  deed  from  Smith 
to  Peter.  If  the  verdict  and  judgment  against  Peter's  tenant 
of  the  60  acres,  be  equivalent  to  a  verdict  and  judgment  against 
Peter,  it  cannot  settle  the  title  as  to  the  70  acres.  For  aught 
that  appears,  Slover  was  a  purchaser  of  the  70  acres,  for  a  valu- 
able consideration,  without  notice,  and,  at  any  rate,  Simpson, 
who  holds  by  mesne  conveyances  from  Slover,  says,  in  his 
answer,  that  he  is  such  a  purchaser. 

Next,  what  amount  of  interest,  in  the  complainant,  in  the  60 
acres,  can  be  at  all  considered  as  settled  by  the  ejectment  against 
Peter's  tenant?  The  bill  says  that  the  complainant,  during  (he 
ejectment,  bought  other  shares,  and,  at  the  time  of  filing  the 
bill,  was  entitled  to  six-twentieths.  But  those  shares  have  been 
held  adversely  since  1822,  and  are  still  so  held.  The  ejectment 
was  commenced  as  early  as  1837,  within  about  fifteen  years 
from  the  commencement  of  the  adverse  possession,  and  cannot 
establish  the  complainant's  title  in  February,  1844,  the  time  of 
filing  the  bill,  to  any  interest  in  the  60  acres,  more  than  the 
twentieth  parl  for  which  the  verdict  and  judgment  were  render- 


JUNE  TERM,  18-16.  407 


Obert  v.  Obert  et  al. 


ed.  Besides,  the  bill  does  not  say  at  what  time  during  the  eject- 
ment the  complainant  bought  other  shares — it  may  have  been 
after  the  lapse  of  twenty  years. 

The  only  title,  then,  in  the  complainant,  which  can  be  con- 
sidered at  all  established  by  the  ejectment,  is  to  a  twentieth  part 
of  sixty  acres  of  the  premises  of  which  he  seeks  partition.  The 
interest  of  Peter,  or  those  claiming  under  him,  is  eight-twenti- 
eths. If,  then,  the  deed  from  Smith  to  Peter,  and  all  the  subse- 
quent conveyances,  could  be  set  aside,  we  should  have  the  case 
f  one  tenant  in  common  owning  a  twentieth,  asking  and  obtain- 
ing an  injunction  against  the  owner  of  eight-twentieths,  in  pos- 
session of  the  whole  or  of  nineteen-twentieths,  from  cutting  any 
wood  or  timber  during  the  pendency  of  a  suit  in  this  court  for  a 
partition  instituted  by  the  owner  of  the  other  twentieth. 

But,  under  the  case  made  by  the  bill  and  answer,  the  question 
whether  such  an  injunction  should  be  continued,  is  still  a  more 
serious  question.  In  the  first  place,  it  appears  by  the  answer, 
that  the  dwelling-house  and  other  buildings  on  the  premises 
were  in  a  ruinous  condition  when  Peter  got  the  title  claimed 
by  him,  and  entered  into  possession  under  it;  and  that  he  put 
new  buildings  on  the  premises,  and  improved  the  lands  by 
manure,  at  an  expense,  altogether,  of  §2000,  besides  his  owu 
labor.  It  certainly  could  not  be  expected,  under  these  circum- 
stances, that  the  injunction,  as  prayed  by  the  bill  and  granted, 
restraining  Peter  from  cutting  any  wood  or  timber,  could  be 
continued.  The  Chancellor,  when  the  motion  was  made,  in 
October,  1844,  to  dissolve  the  injunction,  modified  it  by  limiting 
it  so  as  to  restrain  Peter  from  cutting  timber  not  necessary  for 
the  ordinary  use  of  the  farm.  This  was  eighteen  months  ago. 
No  progress  has  since  been  made  in  the  partition  suit ;  and  the 
motion  now  is,  to  dissolve  the  injunction  entirely. 

The  defendants  say  that  they  intended  to  cut  the  wood  and 
timber  from  two  acres  near  the  barn,  and  had  commenced 
doing  so  when  the  injunction  was  served,  and  deny  that  this 
would  be  waste,  and  deny  all  intention  to  commit  waste. 
Would  this  be  an  irreparable  injury  to  the  complainant,  or 
tend  to  prevent  his  getting  his  full  twentieth,  if  the  parti- 
tion suit  proceeds?  An  equitable  partition  may  be  made  so 


408  CASES  IN  CHANCERY. 

Obert  v.  Obert  et  al. 

as  to  assign  that  portion  of  the  land  on  which  improvements 
have  been  made  to  the  person  who  made  them.  1  Green's 
Ch.  R.  341.  And  I  see  no  reason  why  the  court  could  not 
direct  that,  in  making  the  partition,  the  value  of  these  two  acres 
proposed  to  be  cut  off  should  be  estimated  as  it  was  with  the 
wood  and  timber  on  it,  as  well  as  that  the  land  occupied  by 
the  new  buildings  should  be  valued  as  it  was  with  the  old  build- 
ings on  it. 

In  Elmer's  Dig.  383,  §  19,  it  is  provided  that,  on  a  division 
in  any  of  the  cases  under  the  statutes  for  partition,  if  any  tenant 
in  common,  or  person  claiming  under  him,  hath,  before  division, 
cut  off  any  timber,  or  committed  any  waste  or  destruction  on 
the  premises,  the  commissioners  shall  estimate  the  damage,  and 
divide  the  premises  so  that  such  tenant  shall  be  charged  with  it, 
and  have  a  share  proportionably  less  in  value. 

There  are,  no  doubt,  special  cases  in  which  an  injunction  will 
be  granted  .between  tenants  in  common  -to  stay  waste,  but  the 
cases  are  rare,  and  the  jurisdiction  is  sparingly  exercised.  In 
3  Bro.  Ch.  Rep.  621,  the  Chancellor -said  he  had  no  idea  of  an 
injunction  to  stay  waste  where  the  person  applying  for  it  is 
tenant  in  common  with  the  person  in  possession,  who  has  there- 
fore an  equal  title  to  the  possession  with  him  ;  but,  it  appearing 
in  that  case,  that  they  were  only  equitable  tenants  in  common, 
the  legal  estate  being  in  a  trustee;  and  that  therefore  the  person 
committing  the  waste  had  no  title  to  the  possession  ;  and  it  being 
sworn  that  the  party  cutting  was  insolvent,  the  Chancellor 
granted  the  injunction.  It  may  be  remarked  here,  that  the 
charges  of  insolvency  made  in  the  bill  in  this  case,  are  fully 
denied  by  the  answers. 

In  Hale  v.  Thomas,  7  Ves.  589,  Ld.  Eldon  said  he  never 
knew  of  an  instance  of  an  application  to  stay  Waste  by  one 
tenant  in  common  against  another;  that  a  case  of  malicious 
destruction  might  be  a  ground  ;  and,  in  Tworl  v.  Tworl,  16 
Ves.  128,  the  same  Chancellor  said  that  his  experience  did  not 
furnish  him  with  a  single  instance  of  an  injunction  between 
tenants  in  common  ;  and  that  he  had  refused  injunctions  be- 
tween tenants  in  common,  except  in  special  cases.  The  case 
before  him,  he  said,  was  a  special  case,  one  of  the  tenants  in 
common  having  become  the  occupying  tenant  of  the  other,  and 


JUNE  TERM,  1846.  409 

Obert  v.  Obert  et  al. 

having  by  that  contract  engaged,  as  to  one  moiety,  to  treat  the 
land  as  an  occupying  tenant  should  treat  it;  and  on  this  ground 
he  granted  the  injunction  ;  stating  expressly,  in  the  order,  that 
the  defendant  was  occupying  tenant  to  the  plaintiff;  and  re- 
straining him  from  committing  any  waste  upon  the  premises 
which  he  held  as  such  occupying  tenant.  This,  he  said,  was  a 
safe  principle,  and  would,  by  its  necessary  operation,  prevent  the 
defendant  from  committing  any  waste.  This  ground,  and  that 
of  destruction  or  insolvency,  seem  to  be  the  special  grounds  on 
which  Uie  jurisdiction  has  been  exerted.  This  last  case  was  oil 
a  bill  for  partition,  and  motion  for  injunction. 

The  case  of  Hawley  v.  Clowes,  2  Johns.  Oh.  R.  122,  which 
was  a  bill  for  partition  and  injunction  to  stay  waste,  was,  prob- 
ably, the  case  or  the  authority  on  which  the  Chancellor,  when  a 
motion  to  dissolve  was  made  before  him  eighteen  months  ago,  re- 
tained the  injunction  in  part,  limiting  it  as  before  mentioned.  In 
that  case,  the  plaintiff  and  defendant  owned  the  land  as  tenants 
in  common,  in  equal  undivided  moieties  ;  and  there  was  no  dis- 
pute about  the  title;  and  a  motion  was  made  to  dissolve  without 
answer,  on  the  ground  that  one  tenant  in  common  cannot  have 
an  injunction  against  another.  The  bill  charged  that  the  de- 
fendant was  cutting  down  the  timber,  and  threatening  to  perse- 
vere, and  was  sworn  to ;  and  there  was  no  answer.  The  Chan- 
cellor modified  the  injunction,  confining  it  to  timber  not  wanted 
for  the  necessary  use  of  the  farm.  He  said  that  the  authorities 
admitted  that  an  injunction  between  tenants  in  common  could 
be  granted  in  special  cases,  as  where  the  defendant  was  sworn  to 
be  insolvent,  or  where  the  waste  was  destructive  to  the  estate, 
and  not  within  the  usual  and  legitimate  exercise  of  enjoyment; 
and  that  he  thought  it  fit  that,  pending  a  suit  for  partition,  the 
tenant  in  common  in  possession  should  not  be  permitted  to  strip 
the  laud  of  its  timber.  I  think  this  principle  of  Chancellor 
Kent  a  safe  one,  but  I  cannot  think  the  case  we  are  considering 
is,  under  the  answers  filed,  within  the  principle. 

It  is  proper  to  forbear  from  any  remarks  on  the  question  or 

title. 

Let  the  injunction  be  dissolved. 

CITED  in  Hatt  v.  Piddodc,  6  C.  E.  Or.  314 ;  Coffin  v.  Loper,  10  C.  E.   (Jt 

444 ;  Polhemut  v.  Empton,  12  C.  E.  Gr.  195. 
VOL.  I.  2  0 


410  CASES  IN  CHANCERY. 


Warne  v.  Morris  Canal  and  Banking  Co. 


WILLIAM   M.   WARNE  v.  THE  MOERIS   CANAL    AND   BANK- 
ING COMPANY. 

1.  In  1832,  the  owner  of  a  mill-seat  leased  to  a  canal  company,  for  three 
years,  at  an  annual  rent,  the  privilege  of  diverting  water  from  the  stream,  at 
a  point  above  and  beyond  his  land,  into  the  canal.     He  then  sold  his  mill- 
Beat  to  a  third  person,  reserving  by  the  deed  all  right,  interest  and  demand 
against  the  company  for  the  use  of  the  water,  which  he  then  had,  or  which 
either  of  the  parties  to  the  deed  might  thereafter  have,  as  freely  as  if  he  had 
not  conveyed  the  mill-seat.^   The  company  paid  the  grantor  of  the  mill-seat 
the  rent  for  the  three  years.    After  the  expiration  of  the  lease,  the  company 
continued  to  use  water  diverted  from  the  stream  without  paying  for  it.     In 
1845,  the  grantor  Hied  a  bill  praying  an  account  and  payment  of  the  rents, 
and  an  injunction  restraining  the  company  from  diverting  the  water.     The 
injunction  was  denied. 

2.  Where  there  is  a  remedy  at  law,  and  nothing  to  show  that  the  damages 
which  might  be  awarded  at  law  could  not  be  realized,  and  nothing  of  the 
character  of  irreparable  damages,  an  injunction  will  not  be  granted. 


In  June,  1832,  William  M.  Warne,  being  seized  of  a  lot  of 
laud  of  sixteen  acres,  near  the  canal  of  the  Morris  Canal  and 
Banking  Company,  in  Warren  county,  on  which  lot  he  had 
mills  in  operation,  driven  by  the  waters  of  the  Hopatcong  and 
Brasscastle  creeks,  which  united  some  distance  above  his  said 
lot,  and  after  the  junction  flowed  through  the  same;  and  the 
said  company  wishing  to  use  the  water  of  the  Brasscastle,  to 
increase  the  supply  of  water  for  their  canal,  the  company  en- 
tered into  a  negotiation  with  Warne  for  the  purchase  of  the  right 
to  divert  the  water  of  the  Brasscastle,  either  permanently  or  for 
a  time,  alleging  (as  the  bill  states)  that  the  necessity  for  using 
it  in  the  canal  would  be  temporary  only,  until  the  banks  of  the 
canal  should  become  tight.  Warne,  believing  that  the  want  of 
water  for  the  canal  would  be  permanent,  wished  them  to  buy 
his  whole  right.  After  negotiation  between  the  company  and 
Warne,  the  company  leased  from  Warne  the  privilege  of  taking 
the  water  from  the  Brasscastle  for  three  years,  at  the  annual 
rent  of  $250,  and  thereupon  cut  a  sluice,  by  which  they  turned 
the  water  of  the  Brasscastle  into  their  canal.  The  company  paid 
Warne  the  stipulated  rent  for  the  three  years. 


JUNE  TERM,  1846.  411 

Warne  v.  Morris  Canal  and  Banking  Co. 

On  the  19th  of  January,  1833,  Warne  sold  and  conveyed 
his  said  land  to  H.  M.  Winter,  reserving  by  the  deed,  to  liirn- 
eelf,  his  heirs,  &c.,  "  all  right,  title,  interest,  property,  claim  and 
demand,  both  in  law  and  equity,  against  the  Morris  Canal  and 
Banking  Company,  for  the  use  of  the  water  of  the  Brasscastle, 
which  he  then  had,  or  either  of  the  parties  to  the  said  deed 
might  thereafter  have,  as  fully  as  if  he,  the  said  Warne,  was 
still  in  possession  of  the  premises  and  had  never  conveyed  the 
same." 

After  the  expiration  of  the  three  years  the  company  con- 
tinued to  take  the  water  without  any  further  agreement  with 
Warne,  and,  (the  bill  states,)  as  he  supposed,  with  the  inten- 
tion of  using  it  as  his  tenants  from  year  to  year,  at  the  same 
rent. 

On  the  21st  of  October,  1844,  the  canal  and  its  appendages, 
and  the  chartered  rights  of  the  said  company,  were  sold  under 
a  decree  of  this  court,  and  the  purchasers  at  that  sale,  or  per- 
sons holding  under  them  or  associated  with  them,  are  using 
the  canal  and  exercising  the  chartered  rights  of  the  said  com- 
pany. 

In  July,  1845,  Warne  filed  his  bill  against  the  Morris  Canal 
and  Banking  Company,  stating  the  foregoing  facts,  and  that 
the  company  have  neglected  and  refused  to  pay  him  any  rent 
since  the  expiration  of  the  said  lease,  or  to  make  him  any  ade- 
quate compensation  for  the  use  of  the  water,  or  to  make  any 
proper  arrangement  with  him  for  the  future  use  of  the  water; 
and  praying  an  account,  and  payment  of  the  rent  since  the 
expiration  of  the  lease,  and  an  injunction  restraining  the  com- 
pany from  using  the  water,  and  from  turning  the  same  into  the 
canal,  and  commanding  them  to  restore  the  same  into  its  natural 
and  ancient  channel. 

On  the  filing  of  the  bill,  the  complainant  gave  notice  to  the 
defendants  of  a  motion  for  an  injunction  pursuant  to  the  prayer 
of  the  bill. 

The  motion  was  argued  on  the  bill. 

8.  R.  Hamilton,  for  the  complainant. 

F.   T.  Frelinghuysen  and    William  Hoisted,  for   the  defen- 


412  CASES  IN  CHANCERY. 

Warne  v.  Morris  Canal  and  Banking  Co. 

dants.     They  cited  6  John.  Oh.  46  ;  3  Paige  213 ;    1  Green's 
Ch.R. 

THE  CHANCELLOR.  There  are,  perhaps,  some  questions  in 
the  case  which  ought  to  be  settled  at  law,  for  the  purpose  of 
establishing  the  complainant's  right,  before  the  court  should  act 
by  injunction.  There  is,  also,  a  difficulty  in  the  way  of  an  in- 
junction growing  out  of  the  length  of  time  during  which  the 
complainant  has  slept  over  his  rights,  if  he  has  any.  But  aside 
from  these  matters,  it  is  clear  that  in  the  present  position  of 
things,  this  is  not  a  case  for  the  interposition  of  this  court  by 
injunction. 

It  is  not  an  application  by  the  owner  of  a  mill-seat,  to  pre- 
vent the  obstruction  or  diversion  of  the'.stream.  An  injunction 
is  sought  by  the  complainant  as  a  means  of  compelling  the 
company  to  make  him  compensation  for  the  use  of  the  water. 
This  must  be  its  only  object ;  for  the  complainant  having  con- 
veyed the  mill-seat,  has  no  use  for  the  water  himself.  The 
only  benefit  he  can  derive  from  his  present  position,  under  the 
reservation  in  his  deed  to  Winter,  (assuming  that  such  a  reser- 
vation is  good,)  is  from  the  actual  use  of  the  water  by  the  de- 
fendants ;  and  there  is  nothing  to  show  that  an  action  at  law 
would  not  yield  him  any  compensation  a  court  of  law  might 
award  him ;  and  there  is  nothing  of  the  character  of  irrepara- 
ble injury  to  the  complainant  by  the  defendants'  use  of  the 

water. 

Motion  denied. 


JUNE  TERM,  1846.  413 


Mann  v.  Bruce. 


ABIJAH  MANN,  JR.,  v.  JOHN   BRUCE  AND  CHARLES  BRUCE. 

A  defence  not  raised  by  the  pleadings  cannot  be  raised  by  proofs.  SembU. 
On  a  bill  filed  by  a  receiver  for  the  creditors  and  stockholders  of  a  corpora- 
tion, it  is  not  necessary  to  make  the  creditors  and  stockholders  parties. 


Bill  for  the  foreclosure  of  a  mortgage  given  by  John  Bruce 
and  Charles  Bruce  to  James  Ballagh.  The  mortgage  was  as- 
signed by  the  executors  of  Ballagh's  wilt  to  George  D.  Strong ; 
and  by  Strong  to  Joseph  D.  Beers,  president  of  the  North 
American  Trust  and  Banking  Company,  his  successors  and  as- 
signs ;  and  by  the  said  Beers  to  Thomas  G.  Talmage,  presi- 
dent of  the  said  company,  his  successors  and  assigns ;  and  by 
the  said  Talmage  to  Henry  Yates,  Thomas  G.  Talmage  and 
William  C.  Noyes,  trustees,  to  have  and  to  hold  to  them,  their 
executors,  administrators  and  assigns;  and  by  the  said  Yates, 
Talmage  and  Noyes  to  Abijah  Mann,  Jr.,  the  complainant,  to 
have  and  to  hold  to  him,  his  heirs  and  assigns. 

John  Bruce  put  in  an  answer,  admitting  the  facts  stated  in  the 
bill,  except  as  to  the  assignments ;  and  as  to  them,  he  says  it  may 
be  true  that  the  assignments  were  made  as  stated  in  the  bill,  but 
that  he  is  a  stranger  thereto,  and  cannot  form  any  belief  concern- 
ing the  same,  and  therefore  leaves  the  complainant  to  his  proofs. 

The  assignments  were  proved. 

The  defendants  put  in  proof  that  Abijah  Mann,  Jr.,  the 
complainant,  was  receiver  for  the  creditors  and  stockholders  of 
the  North  American  Trust  and  Banking  Company ;  and  that 
this  mortgage  came  to  his  hands  in  that  character. 

B.  Williamson,  for  the  defendants,  contended — 1st.  That  the 
bill  should  have  stated  the  complainant's  character  as  receiver ; 
2d.  That  the  cextuis  que  ti-ust  should  have  been  made  parties. 

D.  A.  Hayes,  contra.  He  cited  1  Johns.  Ch.  R.  349,  437 ;  1 
Green's  Ch.  305  ;  11  Ves.  444  ;  16  Ves.  321 ;  2  Johns.  Ch.  197 ; 
4  Paige  34. 


414  CASES  IN  CHANCERY. 

Mann  v.  Bruce. 

THE  CHANCELLOR.  The  mortgage  is  assigned  to  Abijah 
Mann,  Jr.,  (the  complainant,)  his  heirs  and  assigns,  without 
stating  him  to  be  receiver.  The  answer  does  not  set  up  that  he 
js  receiver,  but  admits  the  facts  stated  in  the  bill,  except  as  to 
the  assignment^  of  which  the  defendant  says  he  is  ignorant, 
and  leaves  the  complainant  to  his  proof  thereof. 

A  defence  not  raised  by  the  pleadings  cannot  be  raised  by 
proofs. 

It  is  said  that  the  defendants  might  have  a  good  defence 
against  the  North  American  Trust  and  Banking  Company.  If 
they  had,  they  should  have  set  up  the  defence  in  the  answer, 
and  that  the  complainant  was  only  receiver ;  or,  if  they  did  not 
know,  when  the  answer  was  filed,  that  the  complainant  was  re- 
ceiver only,  they  should  have  asked  to  amend  the  answer,' for  the 
purpose  of  showing  that,  and  of  setting  up  their  defence. 

Under  the  form  of  the  assignment  to  the  complainant,  I  ap- 
prehend that  if  the  fact  of  his  being  receiver  only  had  been  set 
np  in  the  answer,  it  would  have  put  no  difficulty  in  the  way  of 
a  decree  on  the  bill  as  it  stands,  unless  the  defendants  had  also 
set  up  a  defence  against  the  company. 

As  to  parties,  if  it  had  appeared  by  the  bill  that  the  com- 
plainant was  receiver  only,  it  would  not  have  been  necessary  to 
make  the  creditors  and  stockholders  of  the  company  parties.  It 
would  be  oppressive  to  reouire  it. 

Decree  for  complainant. 


JUNE  TERM,  1846.  415 


Hulmes  v.  Thorpe. 


HIRAM  HULMES  v.  MOSES  THORPE. 

1.  On  a  bill  by  a.  vendee  for  the  specific  performance  of  an  agreement  for 
the  sale  of  lands,  if  the  vendee  has  performed  a  valuable  part  of  the  contract 
and  is  in  no  default  as  to  the  performance  of  the  residue,  performance  will 
be  decreed. 

2.  A  slight  variation  or-default,  on  the  part  of  the  vendee,  in  the  perform- 
ance of  work  to  be  done  by  him  before  the  deed  was  to  be  delivered,  will  not 
|>revent  a,  decree  for  specific  performance  if  the  difference  is  a  proper  subject 
for  compensation  in  money. 

3.  In  decreeing  performance,  the  court  may  give  a  day  and  prescribe  equit- 
able condition*. 

4.  Semble.  That,  as  a  general  rule,  the  court  will  not  make  a  decree  that  a 
husband  who  has  contracted  to  sell  lands  shall  procure  his  wife's  execution 
and  acknowledgment  of  the  deed. 


Bill  for  specific  performance,  filed  August  7th,  1843.  By- 
articles  of  agreement  dated  March  19th,  1840,  Moses  Thorpe 
agreed  to  sell,  and  Hiram  Hulmes  to  buy,  a  lot  of  land  de- 
scribed in  the  agreement,  supposed  to  contain  forty-one  and  a 
half  acres  ;  and  if  it  should  not  hold  out,  the  quantity  was  to  be 
taken  from  another  lot  of  Thorpe's  described  in  the  agreement, 
in  a  specified  shape  and  position ;  Thorpe  reserving  the  saw- 
iui.ll  on  the  premises  to  be  used  for  fifteen  months  from  the  date 
of  the  agreement ;  provided,  that  on  whatever  money,  property, 
making  of  coal  and  labor  that  should  be  paid  and  performed  by 
Hulmes  on  or  before  November  1st,  1840,  no  interest  should 
be  demanded ;  at  which  time  the  parties  were  to  settle,  and 
Thorpe  was  to  deliver  a  good  and  sufficient  deed,  clear  of  all 
encumbrances,  or  as  soon  as  half  the  purchase  money  was  paid, 
when  Hulmes  was  to  give  his  bond  and  mortgage  on  the  pro- 
perty for  the  balance,  with  interest,  in  two  equal  annual  install- 
ments, Hulmes  to  be  permitted  to  pay  by  cutting  timber  suffi- 
cient to  make  one  hundred  turns  of  coal  of  one  hundred  bush- 
els each,  on  the  northeast  end  of  a  lot  of  fifty  acres  of  Thorpe's, 
called  the  home  lot,  cutting  the  stumps  low,  and  making  the 
timber  into  as  good  coal  as  the  timber  and  season  would  permit, 
and  delivering  the  coal  at  the  Russia  forge  and  coal  house,  and 


416  CASES  IN  CHANCERY. 

Hulmes  v.  Thorpe. 

stocking  all  that  was  not  worked  off  the  bank  in  the  forge  ;  for 
which  Thorpe  was  to  allow  $3.75  for  each  hundred  bushels, 
as  payment  on  and  for  the  land  ;  and  Hulmes  agreed  to  make 
and  deliver  from  sixty  to  one  hundred  loads  of  said  coal  by 
November  1st,  1840,  the  two  last  payments  to  be  made  in  the 
same  way,  by  Thorpe's  finding  timber  not  a  greater  distance 
from  the  forge  than  the  land  he  bought  of  Ryerson  and  Sharpe. 
And  Hulmes  was  to  cut,  draw,  and  saw,  at  the  mill,  such  stuff 
as  Thorpe  might  direct,  and  deliver  at  the  mill  to  Thorpe, 
properly  stuck,  half  the  boards,  plank  and  scantling  of  all  the 
logs,  on  whatsoever  land  he  should  cut  off,  for  the  said  coal 
wood. 

By  a  supplement  to  the  agreement,  and  as  an  explanation  of 
the  understanding  of  the  parties,  it  was  provided  that  Hulmes 
was  to  coaimenee  delivering  coal  on  or  before  September  1st, 
1840,  and  to  continue  to  deliver  coal  sufficient  to  keep  one  fire 
at  the  forge  in  operation. 

On  the  execution  of  the  agreement,  Thorpe  delivered  pos- 
session to  Hulmes.  Hulmes  began  to  deliver  coal  September  1st, 
1840,  and  continued  to  deliver  coal,  and  before  November  1st, 
1840,  delivered  (as  the  bill  states)  sixty  turns,  equal  to  six 
thousand  bushels,  amounting,  at  the  stipulated  price,  to  $225. 
And  the  bill  states  that  on  the  said  first  of  November,  1840,. 
Thorpe,  the  defendant,  was  indebted  to  Hulmes,  the  complain- 
ant, for  work  and  labor,  oats,  and  the  use  of  the  barn  ;  and 
that  on  that  day,  he,  the  complainant,  went  to  Thorpe's  house 
for  the  purpose  of  having  a  settlement,  but  that  Thorpe  had 
gone  to  Illinois. 

In  the  following  season,  Hulmes  continued  to  make  and  de- 
liver coal  at  the  forge;  and  on  or  before  November  1st,  1841, 
had  delivered,  (the  bill  states,)  including  that  delivered  the  pre- 
ceding year,  9150  bushels,  amounting  to  $343.12|.  And  the 
bill  states  that  the  complainant  had  a  further  account  against 
the  defendant,  which,  with  the  account  before  mentioned  and 
the  coal  delivered,  amounted  to  $350,  the  first  payment,  and 
the  interest  on  so  much  thereof  as  remained  unpaid  on  the  1st 
of  November,  1840. 

The  bill  states  the  performance,  on  complainant's  part,  of  the 
other  terms  or  items  of  the  agreement,  stating,  as  to  the  sawing 


JUNE  TERM,  1846.  417 

Hulmes  v.  Thorpe. 

of  the  logs,  that  Thorpe  neglected  to  give  him  directions  as  to 
how  they  should  be  sawed,  till  June,  1843,  when  the  water  had 
become  too  low  to  saw,  and  that  it  remained  too  low  till  the 
filing  of  the  bill.  And  the  bill  states  that  Hulmes  has,  several 
times,  called  on  Thorpe  to  furnish  the  timber  from  which  to 
make  the  coal  for  the  residue  of  the  purchase  money,  and  that 
Thorpe  has  neglected  to  do  so. 

On  the  4th  of  October,  1841,  the  parties  made  another  agree- 
ment, for  the  sale  by  Thorpe  and  the  purchase  by  Hulmes,  of 
another  lot  of  100  acres,  called  the  Allen  lot,  and  also  the  re- 
maining part  of  the  house  lot,  containing  70J  acres,  called  the 
Rorick  survey,  except  the  part  thereof  before  sold  by  Thorpe 
to  Hulmes,  the  consideration  for  the  last  sale  being  $1200, 
$100  of  which,  Thorpe  acknowledges  to  have  then  received, 
the  balance.  $1100,  to  be  paid  as  follows:  $100  on  the  first  of 
November,  1841,  when  Thorpe  was  to  make  a  good  and  suffi- 
cient warrantee  deed,  clear  of  all  encumbrances,  and  Hulmes 
was  to  give  his  five  bonds,  of  $200  each,  payable  on  the  1st  of 
November,  1842,  1843,  1844, 1845,  and  1846,  with  interest,  and 
a  mortgage  on  the  premises,  executed  by  him  and  his  wife  to 
secure  the  same;  and  this  agreement  contained  a  provision 
that  if  any  claim  should  arise,  or  any  prosecution  be  commenced 
on  any  claim  that  then  existed  against  the  lands,  whereby 
Hulmes  should  be  put  to  any  damage,  Thorpe  would  pay  the 
same,  and  that,  if  judgment  should  be  obtained  against  the 
land  by  reason  of  any  claim  then  existing,  whatever  Hulmes 
should  pay,  not  exceeding  the  yearly  payments,  Thorpe  should 
allow  as  so  much  paid  on  this  agreement.  That,  on  the  execu- 
tion of  this  agreement,  Thorpe  delivered  to  Hulmes  the  posses- 
sion of  the  premises,  Hulmes  then  paying  him  $100.  On  the 
23d  of  November,  1841,  Hulmes  paid  to  Thorpe  the  second 
$100,  which  Thorpe  received  as  of  the  1st  of  November,  1841, 
(the  bill  stating  that  Hulmes  made  inquiry  for  Thorpe  on  the 
1st  of  November,  1841,  andNcould  not  find  him,  he  having  gone 
to  Illinois.)  The  bill  states  that,  on  paying  the  second  $100, 
Hulmes  offered  to  give  the  bonds  and  mortgage,  on  Thorpe's 
giving  the  deed,  and  that  Thorpe  refused  so  to  do,  but  offered 
a  deed  executed  by  him  alone,  and  not  by  his  wife,  and 
which  was  also  defective  in  the  description  of  one  of  the  lots; 


418  CASES  IN  CHANCERY. 

Hulmes  v.  Thorpe. 

and  that  Hulmes,  for  these  reasons,  declined  taking  the  said 
deed. 

The  complainant  has  continued  in  possession  of  the  prem- 
ises, and,  the  bill  says,  has  greatly  improved  the  same,  and 
has  frequently  requested  Thorpe  to  perform  the  several  con- 
tracts, and  offered  to  perform  on  his  part,  if  Thorpe  would 
comply. 

In , ,  Thorpe  brought  ejectment  against  Hulmes, 

to  recover  possession  of  the  lands  mentioned  in  both  agree- 
ments. The  bill  states  that,  on  the  28th  of  July,  1843,  Hulmes 
tendered  to  Thorpe  $221,  the  amount  for  which  the  first  bond 
was  to  be  given,  under  the  second  agreement,  and  the  interest 
thereon,  and  four  bonds  and  mortgages,  according  to  the  terms 
of  that  agreement,  and  also  another  bond,  dated  July  25th,  1843, 
for  $350,  and  interest  from  November  1st,  1840,  payable  in  coal, 
according  to  the  first  agreement,  in  two  equal  annual  payments, 
from  said  July  25th,  1843,  and  a  mortgage  on  the  lands  in  the 
first  agreement  mentioned,  executed  by  Hulmes  and  his  wife  to 
secure  the  same,  and  thereupon  requested  the  deed  for  said 
several  lots,  and  that  Thorpe  replied  that  he  was  not  ready, 
and  never  would  be  prepared  to  give  a  deed  executed  by  his 
wife,  saying  he  had  been  divorced  from  the  woman  who  was 
formerly  his  wife. 

The  bill  prays  a  specific  performance  of  the  said  two  agree- 
ments, and  that  a  deed,  executed  by  Thorpe  and  his  wife,  may 
be  decreed  to  be  delivered  to  the  complainant,  sufficient  to  con- 
vey the  lands,  free  from  all  encumbrances,  and  an  injunction 
against  the  ejectment. 

The  injunction  was  allowed.  4 

The  defendant  put  in  his  answer,  to  which  a  replication  wa8 
filed,  and  testimony  was  taken  on  both  sides. 

The  cause  was  brought  to  a  hearing  on   the  oleadings  and 

proofs. 

f . 

W.  Halsted,  for  the  complainant.  He  cited  1  Vesey  446,  450; 
1  Atk.  12;  1  Sim.  &  Stu.  500;  2  Ib.  29;  6  Wheat.  528,  634;  5 
Oranch  262,  274;  9  Ib.  456;  1  Stra.  655;  1  Term.  Rep.  638  j  1 
Fonb.  Eq.  185  (note),  190,  191 ;  2  Story's  Eq.,  §  717  (a),  747, 
771,775;  7  Vesey  474. 


JUNE  TERM,  1846.  419 

I  Itilmes  v.  Thorpe. 

P.  D.  Vroom,  for  the  defendant.  He  cited  2  Wheat.  336 ; 
2  Scho.  and  Lef.  553,  554  ;  18  Vesey  10  ;  Saxton's  Ch.  281  ;  2 
Stoi-y's  Eq.,  §  769,  776  ;  12  Vesey  395  ;  1  Coxe's  Ch.  258 ;  6 
Vesey  349;  1  Pet.  Rep.  383  ;  5  Vesey  720,  note;  15  Ibid.  228 ; 
1  .Baft  and  Beatty  68  ;  Newland  on  Cont.  242  ;  2  Story's  Eq.,  § 
731-4,  a?icZ  note;  1  .Mac/.  .Rep.  9;  4  £os.  and  Pu/.  267. 

THE  CHANCELLOR.  By  the  first  agreement,  that  of  March 
19th,  L840,  Thorpe  was  to  convey  a  lot  of  forty-one  and  a  half 
acres,  as  described  in  the  agreement;  and,  if  it  fell  short,  was 
to  make  up  the  quantity  from  another  lot  described  in  the  agree- 
ment ;  and  was  to  make  the  conveyance  as  soon  as  Hulmes 
should  pay  him  $700,  with  interest  from  April  1st,  1840, 
except  that  no  interest  was  to  be  demanded  on  the  amount  that 
Hulmes  should  pay  in  money,  property,  making  coal  and  labor 
on  or  before  November  1st,  1840,  at  which  time  the  parties 
were  to  settle,  and  Thorpe  was  to  deliver  a  good  and  sufficient 
deed,  clear  of  all  encumbrances,  or  as  soon  as  half  the  purchase 
money  should  be  paid,  when  Hulmes  was  to  give  a  bond  and 
mortgage  for  the  balance,  with  interest,  in  two  equal  annual 
installments ;  Hulmes  to  be  permitted  to  pay  by  cutting  timber 
and  making  one  hundred  turns  of  coal,  of  one  hundred  bushels 
each,  on  a  lot  of  fifty  acres  of  Thorpe's,  called  the  house 
lot,  and  delivering  the  coal  at  the  Russia  forge ;  for  which 
Thorpe  was  to  allow  $3.75  for  each  hundred  bushels,  as  pay- 
ment on  the  laud ;  and  Hulmes  agreed  to  deliver  from  sixty  to 
one  hundred  loads  of  coal  by  November  1st,  1840.  The  two  last 
payments  were  to  be  made  in  the  same  way,  Thorpe  finding 
timber  not  a  greater  distance  from  the  forge  than  the  land  he 
bought  of  Ryerson  and  Sharpe.  Hulmes  was  to  commence  de- 
livering coal  on  or  before  September  1st,  1840,  and  to  continue 
to  deliver  coal  sufficient  to  keep  one  fire  at  the  forge  in  opera- 
tion. There  are  several  minor  particulars  in  this  agreement, 
which  may  be  noticed  hereafter. 

On  the  execution  of  the  agreement,  Thorpe  delivered  posses- 
sion to  Hulmes.  It  will  be  observed  that,  by  this  agreement, 
Hulmes  was  not  required  to  pay  half  of  the  purchase  money  by 
November  1st,  1840.  He  was  required  to  deliver  from  sixty  to 


420  CASES  IN  CHANCERY. 

Hulmes  v.  Thorpe. 

one  hundred  loads  of  coal  by  that  day  ;  on  which  day,  or  as 
soon  as  half  the  purchase  money  was  paid,  Thorpe  was  to  make 
the  deed,  and  Hulmes  to  give  the  bond  and  mortgage.  The 
answer  admits  that  Hulmes  commenced  delivering  coal  on  the 
1st  of  September,  and  continued  so  doing  up  to  November  1st, 
1840,  but  says  that  Thorpe  does  not  believe  that  the  amount 
delivered  before  that  day  exceeded  4250  bushels.  The  bill  states 
that  sixty  turns,  equal  to  6000  bushels,  were  delivered  before 
that  day.  There  is  no  complaint  that  Hulmes  did  not  deliver, 
between  these  periods,  sufficient  to  keep  a  fire  in  the  forge  in 
operation  ;  and  the  difference  between  the  defendant's  belief  as 
to  the  quantity  and  the  statement  of  the  bill  arises  from  Thorpe's 
belief  as  to  the  number  of  bushels  contained  in  a  turn.  From 
the  statement  in  the  bill,  4250  bushels  would  make  sixty  loads, 
of  seventy  bushels  and  a  fraction  each. 

The  answer  admits  that,  in  1841,  Hulmes  continued  to  deliver 
coal  till  on  or  before  November  1st,  1841,  but  says  that  he,  the 
defendant,  does  not  know  how  much  was  delivered  before  that 
day,  but  believes  it  did  not  exceed  G400  bushels,  and  that  he  has 
no  means  of  ascertaining  the  quantity  more  definitely.  The 
bill  states  that  the  amount  delivered,  in  all,  on  or  before  Novem- 
ber 1st,  1841,  was  9150  bushels,  amounting,  at  the  stipulated 
price,  to  $343.121;  and  that,  before  November  1st,  1840,  the 
complainant  had  an  account  against  the  defendant,  for  work  and 
labor,  oats,  and  the  use  of  the  barn,  amounting  to  $17  ;  and 
that,  on  the  1st  of  November,  1841,  he  had  a  further  account 
against  the  defendant,  and  that  these  accounts,  added  to  the  coal 
delivered  before  November  1st,  1841,  amounted  to  $350,  the 
half  of  the  purchase  money,  and  the  interest  due  by  the  terms 
of  the  contract. 

The  defendant  admits  that,  on  the  1st  of  November,  1840,  he 
was  indebted  to  Hulmes  for  work  and  labor,  but  not  exceeding 
three  dollars,  and  says  he  is  unable  to  state  the  amount  more 
definitely  ;  and  that,  before  that  day,  he  had  procured  from 
Hulmes  ten  bushels  of  oats  for  seed,  on  the  understanding  and 
agreement  that  the  same  quantity  should  be  furnished  to  Hulmes 
in  the  spring  of  1841,  for  seed,  or  otherwise;  and  that,  before 
November,  1840,  he  hired  of  Hulmes  half  his  barn  for  five  dol- 
lars, to  be  paid  April  1st,  1841 ;  and  that  he  believes  that  com- 


JUNE  TERM,  1846.  421 

Hulmes  v.  Thorpe. 

plainant's  accounts  against  him,  except  for  coal,  did  not  exceed 
fifteen  dollars,  and  that  he  ha^  no  means  of  ascertaining  the 
amount  more  definitely.  Thorpe  admits  that  he  left  the  state, 
for  the  State  of  Illinois,  about  the  1st  of  November,  1840,  but 
says  he  cannot  state  more  definitely  the  day  he  Ipft.  I  am  sat- 
isfied, from  the  answer  and  the  testimony,  that  he  left  before 
the  1st  of  November,  1840.  In  March,  1841,  Thorpe  returned 
to  this  state,  and  Hulmes  went  on  to  deliver  coal  in  the  season 
of  1841,  as  before  stated. 

The  bill  states  that  on  the  23d  of  November,  1841,  the  com- 
plainant offered  to  give  the  bond  and  mortgage,  according  to 
the  contract,  on  Thorpe's  giving  the  deed,  and  that  Thorpe 
refused  to  do  so,  but  offered  a  deed  executed  by  him  alone,  and 
not  by  his  wife,  and  which  waa  also  defective  in  the  description; 
and  that  the  complainant,  for  these  reasons,  declined  taking 
the  deed,  ancj  that  the  complainant  has  frequently  requested 
Thorpe  to  perform,  and  offered  to  perform  on  his  part,  if  Thorpe 
would  comply  on  his  part. 

Thorpe  admits  that  he  offered  Hulmes  a  deed  for  the  prem- 
ises, executed  by  him  alone,  and  also  defective  in  the  descrip- 
tion, and  that  Hulmes  refused  to  receive  it,  on  the  ground  of 
the  defective  description,  and  says  that  this  was  on  or  about 
November  1st,  1841 ;  but  he  says  he  does  not  recollect  whether 
or  not,  and  does  not  believe  that  Hulmes  refused  to  receive  the 
deed  on  the  ground,  or  alleged  that  the  defendant  had  a  wife 
who  ought  to  execute  the  deed.  The  answer  further  says  that 
on  the  7th  of  July,  1842,  the  complainant,  with  his,  the  de- 
fendant's, consent,  caused  a  deed  to  be  prepared  for  the  purpose 
of  sending  it  to  Indiana,  to  be  executed  by  one  Annis  Thorpe, 
formerly  his  wife,  and  that  he  sent  it  accordingly,  but  that  he 
did  so,  not  in  compliance  with  any  obligation  on  his  part,  but 
ouly  to  satisfy  the  complainant.  He  says  that  on  the  14th  of 
September,  1843,  since  the  filing  of  the  bill,  he  received,  by  mail, 
the  said  deed,  executed  and  acknowledged  by  the  said  Annis, 
and  that  he  showed  it  to  the  complainant  on  the  16th  of  Octo- 
ber; and. he  admits  that  the  said  deed,  or  any  other  deed  exe- 
cuted by  the  said  Annis,  was  never,  before  the  filing  of  the  bill, 
offered  to  the  complainant,  though  he  says  that  on  said  October 
16th  he  offered  to  deliver  the  said  deed  to  the  complainant,  with 


422  CASES  IN  CHANCERY. 

Hulmes  v.  Thorpe. 

a  proper  deed  executed  by  him,  and  requested  the  complainant 
to  pay  the  money  due   him  on   the  agreement.     He  says  that 
said  Annis  deserted   him  on  or  about  December  1st,  1836,  &c. 
He  says  that  on  or  about  January  14th,  1843,  he  delivered  to 
the  complainant,  in  the  street,  n,ear  the  complainant's  house,  a 
notice  to  fulfill  the  contract  or  give  up  possession,  and  requested 
him  to  receive  a  deed  for  the  premises ;  and  that,  at  that  time, 
he  tendered  a  deed  duly  executed  and  acknowledged   by  him, 
giving  a  correct  description  of  the  premises,  and  containing  the 
usual   covenants,  and  sufficient,  as  he  is  advised  and  believes, 
under  the  said  agreement,  and  that  he  informed  the  complain- 
ant of  the  contents  thereof,  and  that  the  complainant    might 
have  seen  the  same  if  he  had  chosen  to  do  so ;  and   that  he 
thereupon  requested    the  complainant  to  perform  on  his  part. 
He  admits  that  on  that  occasion  the  complainant  asked  him, 
and  Webb,  who  was  with  him,  to  walk  with  the  complainant 
into  the  house,  but  denies  that  the  complainant  said   he  would 
arrange  the  business  then.     He  admits  that  on  the  28th  of  July, 
1843,  the  complainant  requested  him  to  deliver  a  deed,  and 
insisted  that  the  agreement  required  the  conveyance  or  release 
of   Annis  Thorpe,  and    that    he,    the    defendant,  replied    that 
he  was  not  and  never  would  be  prepared  to  give  a  deed  execu- 
ted by  the  said  Annis ;  and  stated  that  he  had  no  wife,  entitled 
to  dower,  and    that    he  thereupon    offered    the  complainant  a 
deed  duly  executed  and  acknowledged  by  him,  on   the  payment 
of  the  money  due,  and  the  execution  of  the  bond  and  mortgage. 
He  admits  that  he  has  insisted,  and  he  now  submits,  that  after 
the  lapse  of  time  which   has  occurred,  the  consideration  men- 
tioned in  the  contract  should  be  paid   in   money.     He  says  that 
on  or  about  July  1st,  1842,  the  complainant,  for  the  first  time, 
as  far  as  he  recollects,  and  as  he  believes,  declared  he  would 
not  comply,  unless  he,  Thorpe,  would  procure  a  deed  executed 
by  said  Annis,  and  insisted  that  the  agreement  required  such  a 
deed,  and  the  defendant  insists  that  no  such  deed  was  required 
by  the  agreement. 

Among  the  exhibits  on  the  part  of  the  defendant  is  a  deed, 
dated  July  7th,  1842,  between  Thorpe,  of  the  first  part,  and 
Hulrnes,  of  the  second,  purporting  to  have  been  executed  by 
Annis  Thorpe,  by  her  mark,  with  a  certificate  of  a  justice  of 


JUNE  TERM,  1846.  423 

Ilulraes  v.  Thorpe. 

the  peace  of  Indiana  annexed,  that  Annis  Thorpe,  wife  of 
Moses  Thorpe,  acknowledged,  &c.,  (in  the  usual  form  of  ac- 
knowledgment by  a  married  woman.)  This  certificate  is  dated 
August  18th,  1843.  There  is  also  annexed  to  this  deed  a  cer- 
tificate of  the  mayor  of  Madison,  in  Indiana,  dated  April  16th, 
1844,  that  on  that  day  Annis  Thorpe  acknowledged,  &c.,  (in 
the  usual  form,)  that  she  executed  the  deed,  stating  that  she  had 
acknowledged  it  before,  and  that  she  understood  the  first  ac- 
knowledgment was  illegal  in  New  Jersey. 

From  the  case,  as  thus  far  developed,  it  seems  to  me  to  be 
plain  that  the  complainant  is  entitled  to  a  specific  performance 
of  this  agreement.  He  has  performed  a  valuable  part  of  the  con- 
tract, and  so  far  as  yet  appears,  is  in  no  default  as  to  the  per- 
formance of  the  residue,  unless  his  declining  to  take  a  deed  with- 
out the  execution  of  it  by  Thorpe's  wife  is  a  default. 

The  question  whether  the  court  will  decree  that  a  husband  shall 
procure  his  wife  to  join  in  a  conveyance,  has  been  spoken  to  in 
this  case.  If  it  appears  that  the  wife  objects,  I  do  not  see  how 
the  court  can  make  such  a  decree.  If  a  vendor  asks  specific 
performance  of  an  article  like  this,  stipulating  for  a  good  and 
sufficient  deed,  clear  of  all  encumbrances,  the  court  would  not 
compel  performance  by  the  vendee,  unless  the  wife  joined  in  the 
deed.  And  where  the  vendee  asks  performance,  and  it  appears 
satisfactorily  that  the  wife  of  the  vendor  refuses  to  join,  the  re- 
sult would  only  be  that  the  vendee  would  have  his  election,  to 
take  a  deed  without  the  wife's  signature,  or  resort  to  his  action 
at  law  for  breach  of  the  agreement.  But  in  this  case  it  is  con- 
tended, on  the  part  of  the  vendee,  that  inasmuch  as  it  appears 
that  the  wife  is  willing  to  execute  the  deed,  her  willingness 
having  been  shown  by  her  twice  acknowledging  the  deed  so  as 
aforesaid  exhibited,  there  can  be  no  objection  to  a  decree  that  a 
deed  be  given  by  Thorpe's  wife. 

According  to  the  doctrine  of  this  court,  a  decree  that  a  thing 
be  done  puts  the  party  in  the  same  position  as  if  it  was  actually 
done,  though  it  be  refused.  It  may  be  that  the  wife's  acknowl- 
edgment of  the  deed  in  this  case  should  be  considered  as  equiva- 
lent to  her  express  consent  to  execute  it,  and  that  on  this 
ground  the  court  would  be  justified  in  making  a  decree  that 
Tho'oe  deliver  a  deed  executed  by  him  and  his  wife.  But  it 


424  CASES  IN  CHANCERY. 

Hulmes  v.  Thorpe. 

would  be  safer  for  the  court  to  decree  the  delivery  of  the  deed 
already  executed  by  her  and  perhaps  it  would  be  safer  for  the 
complainant. 

As  to  the  difference  between  the  parties  in  reference  to  the 
amount  of  the  coal  delivered  and  the  accounts  of  Hulmes  and 
Thorpe  on  the  1st  of  November,  1841,  it  is  very  small ;  and 
even  if  there  was  a  slight  deficiency,  it  would  not  prevent  a 
decree*,  for  the  difference  could  be  compensated  in  money.  But 
in  this  case  it  seems  to  me  that  the  complainant  honestly  thought 
and  still  thinks,  that  the  coal  delivered,  and  his  accounts  against 
Thorpe  for  property  and  work  and  labor,  under  the  terms  of  the 
agreement,  amount  to  the  sum,  on  the  payment  of  which,  he  was 
to  have  the  deed. 

It  was  admitted  in  argument  that  if  Hulmes  put  himself  on 
the  ground  that  he  had  paid  half,  and  would  do  no  more  till 
he  got  the  deed,  and  the  proof  sustained  him,  his  position  would 
be  good.  Thorpe  had  gone  to  Illinois  before  November  1st, 
1840,  and  the  settlement  contemplated  by  the  agreement  to  be 
made  at  that  time  could  not  be  made;  and  there  is  evidence,  I 
think,  sufficient  to  show  that  Hulmes  went  to  Thorpe's  that  day 
for  the  purpose  of  making  such  settlement. 

Again,  the  bill  states  that  on  the  23d  of  November^  1841, 
the  complainant  offered  to  give  the  bond  and  mortgage,  accord- 
ing to  the  contract,  on  Thorpe's  giving  the  deed  ;  and  that 
Thorpe  offered  a  deed  executed  by  him  alone,  and  also  defective 
in  the  description,  which  Hulmes,  therefore,  refused  to  accept. 
The  defendant  admits  that  about  the  1st  of  November,  1841, 
he  offered  such  a  deed,  and  that  Hulmes  refused  it.  No  objec- 
tion was  then  made  b.y  Thorpe  that  Hulmes  was  not  entitled  to 
his  deed  because  he  had  not  paid  half.  No  settlement  was  asked 
by  Thorpe,  to  see  if  Hulmes  had  paid  half,  but  a  deed  confess- 
edly defective  was  offered.  If  a  good  deed  had  been  offered,  a 
settlement  might  then  have  been  gone  into;  and  if  it  had  ap- 
peared that  Hulmes  had  not  paid  half,  he  could  have  paid  the 
balance  of  the  half  in  money. 

The  answer  admits  that  in  or  about  March,  1842,  the  com- 
plainant called  on  the  defendant  and  requested  him  to  furnish 
the  timber  from  which  to  make  more  coal,  insisting  that  he  had 
already  made  coal  to  the  extent  alleged  in  the  bill,  which  the 


JUNE  TERM,  1846.  425 

Hulmes  v.  Thorpe. 

defendant  says  he  did  not  then,  and  does  not  now  admit.  Why 
was  not  a  settlement  then  gone  into,  as  to  what  amount  had 
been  delivered  ?  Did  the  defendant  then  deny  the  complainant's 
statement?  There  is  no  evidence  that  he  did. 

Again,  the  defendant  says  that,  on  the  14th  of  January,  1843, 
in  the  street,  near  the  complainant's  house,  he  tendered  a  deed, 
executed  by  him,  giving  a  correct  description,  and  informed  the 
complainant  of  the  contents  thereof,  and  that  complainant  might 
have  seen  it,  if  he  had  chosen,  and  that  he  thereupon  requested 
the  complainant  to  perform  on  his  part;  and  he  admits  that,  on 
that  occasion,  the  complainant  asked  him  to  walk  into  the  house, 
and  that  he  refused  to  go  in.  Here  was  another  proper  occasion 
for  a  settlement  as  to  the  amount  that  had  been  paid,  and,  if  it 
had  turned  out  that  Hulmes  had  not  fully  paid  the  half,  he 
could  have  paid  the  balance  in  money. 

Again,  the  defendant  admits  that,  on  the  28th  of  July,  1843, 
the  complainant  requested  a  deed,  and  insisted  on  a  deed  exe- 
cuted by  Aunis  Thorpe,  and  that  he  replied  that  he  never 
would  be  prepared  to  give  such  a  deed,  and  tendered  a  deed 
executed  by  him.  No  difficulty  seems  to  have  been  made,  at 
any  time,  as  to  the  amount  that  had  been  paid.  Hulmes  claimed 
that  he  had  paid  the  half,  and  I  see  no  reason  to  doubt  that, 
if  there  had  been  no  difficulty  about  the  deed,  and,  on  a  settle- 
ment, at  any  of  these  periods,  it  had  appeared  that  there  was. 
still  due  a  balance  on  the  half,  Hulmes  would  have  paid  it  in 
money.  I  think  that  Hulmes  is  in  no  such  default,  in  this 
respect,  as  should  induce  the  court  to  deny  him  a  specific  per- 
formance. The  case,  in  this  part  of  it,  as  to  the  general  ques- 
tion, whether  performance  should  be  decreed,  must  stand  on  the 
same  ground  as  it  would  if  Hulmes  had  confessedly  paid  the 
half. 

There  is  no  difficulty  arising  from  lapse  of  time,  in  this  case. 
The  agreement  was  made  in  March,  1840,  and  the  bill  was 
filed  in  August,  1843;  and  I  see  no  such  change  of  circum- 
stances as  should  induce  the  court  to  refuse  a  decree.  It  would 
occupy  too  much  time  and  space  to  examine,  particularly,  the 
complaints  of  the  defendant  as  to  the  alleged  minor  defaults  of 
the  complainant,  and  the  testimony  respecting  them.  The 
items  in  reference  to  which  the  defendant  complains  that  the 

VOL.  i.  2  D 


426  CASES  IN  CHANCERY 

Hulmes  v.  Thorpe. 

complainant  did  not  perform  the  contract,  are — that  the  greater 
part  of  the  stumps  were  not  cut  low;  that  the  coal  was  not 
made  as  good  as  the  timber  and  season  would  allow;  that,  as 
near  as  he  can  state,  and  as  he  believes,  a  quarter  of  the  coal 
not  worked  off  the  bank  at  the  forge,  was  not  stocked ;  that  the 
complainant  did  not  cut  and  draw  to  the  mill  all  the  saw-logs, 
though  he  admits  he  cut  and  drew  a  large  proportion  of  them. 
The  defendant  denies  that  the  complainant  was  ready  or  will- 
ing to  saw  the  logs  and  deliver  half  thereof,  stuck,  at  any 
time  prior  to  December,  1842,  and  says  that,  during  the  years 
1841  and  1842,  he  frequently  requested  the  complainant  to 
draw  and  saw  them,  and  directed  him  into  what  stuff  to  saw 
them.  That  in  March,  1842,  he  directed  the  complainant  to 
saw  timber  for  a  small  frame  house,  according  to  a  bill  to  be 
furnished  by  De  Wolf,  and  that  he  is  informed  and  believes 
that  the  bill  was  furnished  in  May  or  June,  1843.  He  admits 
that,  except  this,  he  has  not  given  the  complainant  any  direc- 
tions as  to  the  sawing  of  the  logs.  He  says  that  the  water  in 
the  stream  has  been,  at  all  times,  sufficient,  since  March,  1843, 
to  drive  the  mill  and  saw  all  the  timber. 

No  such  default,  in  any  of  these  respects,  is  shown,  as  should 
prevent  a  decree  for  performance.  A  slight  variation  or  default 
is  not  important,  if  the  difference  is  a  proper  subject  of  compen- 
sation in  money.  2  Moll.  588;  7  Monro  142.  And  as  to  all 
these  matters,  I  think  the  weight  of  testimony  is  so  strongly  in 
favor  of  the  complainant,  that  I  should  be  unwilling  to  delay 
the  cause,  with  a  view  of  ascertaining  whether  the  complainant, 
before  a  decree  should  be  made  for  the  specific  performance  of 
the  agreement,  should  not  make  compensation  for  defaults,  in 
some  of  these  particulars.  Again,  the  defendant,  after  all  these 
alleged  defaults,  offered  to  deliver  a  deed  executed  by  himself. 

The  second  article  was  an  agreement  to  convey  for  a  money 
consideration  of  $1200,  $100  of  which  was  paid  on  the  exe- 
cution of  the  article,  and  the  balance  of  which  was  to  be  paid 
as  follows:  $100,  November  1st,  1841,  when  Thorpe  was  to 
make  a  good  and  sufficient  warrantee  deed,  clear  of  all  encum- 
brances, and  Hulmes  was  to  give  his  five  bonds,  for  $200  each, 
payable  on  the  1st  November  in  each  of  the  five  following  years, 
with  interest,  and  a  mortgage  on  the  premises,  execuUd  by  him 


JUNE  TERM,  1816.  427 

Hulmes  v.  Thorpe. 

aftd  his  wife,  to  secure  the  same.  On  the  execution  of  this 
agreement,  and  the  payment  of  $100,  Thorpe  delivered  posses- 
sion to  Hulmes.  On  the  23d  November,  1841,  Hulmes  paid 
the  second  $100,  and  Thorpe  received  it  as  of  the  1st  Novem- 
ber, 1841. 

The  bill  states  that,  on  paying  the  second  $100,  Hulmes 
offered  to  give  the  bonds  and  mortgage,  on  Thorpe's  giving  the 
deed ;  and  that  Thorpe  offered  a  deed  executed  by  him  alone, 
and  not  by  his  wife,  and  which  was  also  defective  in  the  de- 
scription ;  and  that  Hulmes,  for  these  reasons,  declined  taking 
the  deed.  Thorpe  admits  that  on  or  about  November  1st,  1841, 
he  offered  Hulmes  a  deed  for  the  premises,  executed  by  him 
alone,  and  also  defective  in  the  description,  and  that  Hulmes 
declined  receiving  it,  on  the  ground  of  the  defective  description; 
and  the  defendant  says  he  does  not  recollect  whether  or  not, 
and  does  not  believe,  that  Hulmes  refused  it  on  the  ground,  or 
alleged  that  the  defendant  had  a  wife  who  ought  to  execute  the 
deed. 

Thorpe  says  that  on  or  about  July  1st,  1842,  the  complainant 
for  the  first  time,  as  far  as  he  recollects,  and  as  he  believes,  de- 
clared he  would  not  comply  unless  he,  Thorpe,  would  procure  a 
deed  executed  by  the  said  Annis,  and  insisted  that  the  agree- 
ment required  such  a  deed.  He  says  that  on  the  14th  January, 
1843,  he  tendered  to  the  complainant,  in  the  street  near  the 
complainant's  house,  a  deed  duly  executed  and  acknowledged 
by  him,  giving  a  correct  description  of  the  premises,  and  in- 
formed the  complainant  of  the  contents  thereof;  and  that  the 
complainant  might  have  seen  it  if  he  had  chosen  to  do  so;  and 
that  he  thereupon  requested  the  complainant  to  perform  on  his 
part.  He  admits  that  on  that  occasion  the  complainant  asked 
him  and  Webb,  who  was  with  him,  to  walk  into  the  house,  as 
stated  in  the  bill,  but  denies  that  the  complainant  said  he  would 
arrange  their*  business  then,  as  stated  in  the  bill. 

It  thus  appears  that  it  was  not  till  January  14th,  1843,  that 
Thorpe  offered  a  deed  with  a  correct  description.  The  bill  states 
that  on  the  28th  July,  1843,  the  complainant  tendered  to 
Thorpe  $221,  being  the  $200  and  interest  thereon  for  which 
the  first  bond  was  to  be  given,  and  four  bonds  and  a  mortgage, 
according  to  the  terms  of  the  agreement,  and  thereupon  re- 


428  CASES  IN  CHANCERY. 

Hulmes  v.  Thorpe. 

quested  tbe  deed  ;  and  that  Thorpe  replied  that  he  was  not  and 
never  would  be  ready  to  give  a  deed  executed  by  his  wife.  The 
defendant  admits  that  on  that  day  the  complainant  requested  a 
deed,  and  insisted  that  the  agreement  required  the  conveyance  or 
release  of  the  said  Annis  ;  and  that  he  made  the  answer  stated 
in  the  bill.  And  he  admits  that  on  that  day  the  complainant 
stated  that  he  then  and  there  had  $221,  as  the  amount  of  the 
second  payment  and  interest  thereon,  and  the  four  bonds  and 
mortgage,  as  stated  in  the  bill,  and  says  that  he  thereupon  re- 
quested the  complainant  to  allow  him  and  another  person  to 
count  the  money  and  examine  the  papers ;  and  that  the  com- 
plainant refused  to  allow  him  and  such  other  person  to  do  so  ; 
and  he  denies  that  the  complainant  otherwise  offered  to  perform, 
or  otherwise  tendered,  &o.,  and  says  he  has  no  knowledge  or  in- 
formation of  the  contents  of  the  said  papers,  except  from  the 
statement  of  the  complainant;  and  that  if  they  were  tendered, 
they  were  not,  with  the  said  money,  a  sufficient  compliance 
with  the  agreement ;  and  that  he  was  not  bound  to  accept  them. 

He  says  that  on  the  7th  July,  1842,  the  complainant,  with 
his  consent,  caused  a  deed  to  be  prepared  for  the  purpose  of 
sending  it  to  Indiana,  to  be  executed  by  the  said  Annis ;  and 
that  he,  at  complainant's  request,  immediately  sent  it ;  that  he 
did  so,  not  in  compliance  with  any  obligation  on  his  part,  but 
solely  as  a  gratuitous  act,  at  complainant's  request,  and  to  sat- 
isfy him.  That  since  the  bill  was  filed,  he  received  the  deed, 
executed  and  acknowledged  by  the  said  Annis;  and  he  admits 
that  no  deed  executed  by  the  said  Annis  was  ever  offered  to  the 
complainant  before  the  filing  of  the  bill.  This  is  the  same  deed 
spoken  of  and  described  in  that  part  of  this  opinion  which  re- 
lates to  the  first  agreement,  it  being,  or  purporting  to  be,  a  con- 
veyance, in  one  deed,  of  the  lands  described  in  both  agreements. 

The  statement  of  the  foregoing  facts  in  reference  to  the  second 
agreement  is  sufficient,  I  think,  to  show  clearly  that  there  is 
nothing  in  the  way  of  the  relief  sought  by  the  bill  as  to  this 
agreement,  except  the  difficulty  as  to  the  form  of  the  decree 
growing  out  of  the  fact  that  the  defendant  has  a  wife.  In  refer- 
ence to  this,  the  view  taken  in  considering  the  couree  to  be 
adopted  on  the  first  agreement  applies  here. 


JUNE  TERM,  1846.  42!) 

Hulmes  v.  Thorpe. 

I  am  of  opinion  that,  in  reference  to  both  contracts,  the  com- 
plainant is  entitled  to  the  relief  he  seeks.  What  mode  shall  be 
prescribed  for  the  performance,  on  the  part  of  the  complainant, 
of  the  first  agreement?  It  is  said  that  in  suits  for  specific  per- 
formance, the  court  may  modify  the  agreement  so  as  to  do  jus- 
tice, if  circumstances  require  it.  1  Peters  376.  I  do  not  see 
that  justice,  in  this  case,  requires  any  modification  except  as  to 
time,  nor  does  it  appear  that  the  circumstances  of  the  defendant, 
in  reference  to  the  stipulations  of  the  agreement,  are  so  changed 
as  to  require  a  different  mode  of  payment  from  that  contracted 
for  by  the  complainant. 

There  is  no  reason  to  believe,  from  anything  appearing  in 
the  case,  that  the  defendant  has  not  timber  land  within  a  pro- 
per distance  from  which  to  make  coal.  We  are  relieved,  there- 
fore, from  the  difficulty  which  might  have  been  presented  if  the 
defendant,  since  the  agreement,  had  sold  his  timber  lands.  And 
as  to  time,  if  the  complainant  is  to  perform  by  making  coal, 
one  and  two  years  would  be  reasonable ;  and  if  money  pay- 
ments are  to  be  substituted,  the  same  time  would  be  reasonable. 
In  decreeing  performance,  the  court  may  give  a  day  or  prescribe 
equitable  conditions.  1  A.  K.  Marshall  162. 

The  complainant  could  not  tender  in  money  under  this  con- 
tract ;  but  the  defendant  submits,  in  his  answer,  that  if  per- 
formance be  decreed,  the  decree  should  direct  the  payments  to 
be  made  in  money.  I  do  not  feel  satisfied,  under  the  evidence 
in  the  case,  to  give  such  a  direction  against  the  consent  of  the 
complainant ;  but  it  might  prevent  much  future  trouble  and 
vexation  to  the  parties,  and  perhaps  to  the  court,  if  the  com- 
plainant will  consent  to  it. 

A  reference  to  a  master  will  be  necessary,  to  ascertain  whether 
there  is  any  balance  due  Thorpe  for  the  half  of  the  consideration 
on  the  first  contract.  If  there  is,  that  balance  should  be  paid 
in  money. 

Decree  for  complainant. 

CSSED  in  Peeler  v.  Levy,  11  C.  E.  Or.  335. 


430  CASES  IN  CHANCERY. 


Commercial  Bank  v.  Reckless. 


THE  COMMEECIAL  BANK  OF  NEW  JERSEY  v.  JOSEPH  W. 
BECKLESS  ET  AL. 

1.  Allegation  of  the  delivery  of  a  bond  and  mortgage  not  sustained  by  the 
evidence  offered. 

2.  The  possession  of  a  mortgage,  obtained  from  the  clerk's  office  by  the 
person  named  therein  as  mortgagee,  without  the  consent  of  the  mortgagor,  and 
after  he  had  refused  to  deliver  the  bond  to  secure  which  the  mortgage  was 
drawn,  is  no  evidence  of  the  delivery  of  the  mortgage. 

3.  To  constitute  the  delivery  of  a  deed,  the  grantor  must  part,  not  only  \\  ith 
the  possession,  but  with  the  control  of  it,  and  deprive  himself  of  the  right  to 
recall  it. 

4.  To  make  the  leaving  of  a  deed,  by  the  grantor,  with  the  clerk,  for  re- 
gistry, and  the  registration  thereof,  a  good  delivery  to  the  grantee,  it  must  be 
left  for  the  grantee,  or  with  such  directions  from  the  grantor  aa  to  amount  to 
a  delivery  and  authorize  the  grantee  to  take  it  from  the  clerk. 

6.  The  denial  in  the  answer,  of  the  material  allegation  of  the  bill,  which 
denial  is  supported  by  a  witness  for  the  defendant,  cannot  be  overcome  by  a 
single  witness  in  support  of  the  allegation  of  the  bill,  though  there  be  dis- 
crepancies in  other  matters  between  the  answer  and  the  witness  for  the 
defendant. 


The  statement  of  the  bill  in  this  case  is,  that  Joseph  W. 
Reckless,  being  indebted  to  "The  Commercial  Bank  of  New 
Jersey  "  on  four  promissory  notes,  drawn  by  said  Reckless,  and 
endorsed,  respectively,  by  another  person,  and  discounted  by  the 
said  bank,  being  renewals  of  previous  notes  of  long  standing, 
for  the  better  securing  the  same,  and  as  collateral  security  there- 
for, on  the  5th  March,  1841,  executed  his  bond  to  the  said 
bank,  conditioned  for  the  payment  of  $3600,  the  amount  of 
said  four  notes,  and,  to  secure  the  payment  of  the  sum  men- 
tioned in  the  condition  of  the  said  bond,  executed,  with  his 
wife,  the  mortgage  set  forth  in  the  bill ;  that  the  mortgage  was 
acknowledged  by  J.  W.  Reckless  and  wife,  on  the  day  of  ito 
date,  and  was  registered  on  the  24th  March,  1841.  That  after 
the  execution  of  the  bond  and  mortgage,  they  were  delivered  to 
the  complainants.  That  J.  W.  Reckless,  or  some  person  for 
him  and  in  his  name  and  by  his  authority,  under  the  plea  or 
pretence  of  procuring  the  assignment  of  a  certain  policy  of  in- 
surance on  the  premises,  to  the  complainants,  and  the  assent  of 


JUNE  TERM,  1846.  431 

Commercial  Bank  v.  Reckless. 

the  insurance  company  to  the  assignment,  shortly  after  the  de- 
livery to  the  complainants  of  the  bond  and  mortgage,  procured 
them  from  the  complainants,  with  the  full  understanding  and 
belief  of  the  complainants  that  they  were  to  be  returned  to  the 
complainants  when  the  object  for  which  they  were  taken  was 
accomplished.  That  the  mortgage  was  returned  to  the  com- 
plainants, but  that  Reckless,  at  all  times  thereafter,  refused  to 
deliver  up  the  bond  to  the  complainants,  and  that  the  bond  re- 
mains in  the  possession  or  under  the  control  of  Reckless. 

The  complainants  charge  that  the  bond  was  actually  deliver- 
ed to  them  with  the  mortgage,  and  insist  that  their  rights  are 
not  affected  by  the  detention  of  the  bond  ;  and  further  insist 
that  "as  the  mortgage  was  given  as  security  for  the  payment 
of  the  notes,  to  the  amount  specified  in  the  mortgage  and  bond, 
their  right  in  such  security  is  good  and  perfect,  independently  of 
the  bond,  which  was  not  the  evidence  of  the  debt,  but  merely 
designated  the  amount  for  which  security  was  given." 

J.  W.  Reckless,  in  his  answer,  admits  his  indebtedness  on 
the  notes,  and  says  that  on  the  5th  March,  1841,  and  for 
several  weeks  previous,  he  was  sick  and  confined  to  his  house 
and  bedroom,  and  that  during  his  illness  he  was  applied  to 
from  time  to  time,  and  importuned  by  the  bank  to  secure  the 
notes  by  a  bond  and  mortgage  on  property  at  Amboy ;  which 
he  repeatedly  refused  to  do,  because  he  had  no  property  except 
what  he  acquired  by  his  marriage,  and  which,  by  an  agree- 
ment with  his  wife  before  marriage,  he  was  bound  to  convey 
in  trust  for  her;  that  being  debilitated  in  mind  and  body  by 
his  sickness,  he  was  so  far  overcome  by  the  importunities  of 
the  batik  that  he  had  a  bond  drawn  up,  of  the  description  men- 
tioned in  the  bill,  and  also  the  mortgage  mentioned  in  the  bill, 
and  which  is  now  in  the  complainants'  possession ;  and  that  on 
the  said  5th  March,  1841,  Judge  Potter  came  to  his  room  where 
he  was  confined,  and  he  executed  the  bond  in  the  presence  of 
the  said  judge,  and  he  and  his  wife  executed  the  mortgage  and 
acknowledged  it  before  the  said  judge;  but  that  neither  the 
IKMK!  nor  the  mortgage  was  ever  delivered  by  him,  or  by  his 
authority,  to  the  complainants  or  to  any  person  for  them  ;  and 
that  the  bond  has  never  been  out  of  his  possession  ;  that  im- 
mediately after  the  bond  and  mortgage  were  signed,  he 


432  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

mined  in  his  own  mind  never  to  deliver  them,  for  the  reason 
that  the  property  embraced  in  the  mortgage  was  the  property 
of  his  wife,  and  was  agreed  to  be  secured  to  her,  as  before 
stated  ;  and  that  he  never  did  deliver  them  ;  that  a  few  days 
after  the  mortgage  was  signed,  his  son  Anthony,,  at  the  request 
of  the  said  defendant,  took  the  mortgage  out  of  his  possession, 
and  went  with  it  to  the  clerk's  office  for  the  purpose  of  procur- 
ing a  certificate  of  search;  and,  as  he  is  informed  by  Anthony 
and  verily  believes,  Anthony  took  the  mortgage  to  the  clerk's 
office  and  left  it  there,  with  the  direction  to  have  a  search  made 
as  to  encumbrances  on  the  property ;  and  that  without  his 
knowledge  or  authority,  and,  as  he  is  informed  and  believes, 
without  the  knowledge,  direction  or  consent  of  Anthony,  the 
complainants  procured  the  mortgage  from  the  clerk's  office;  and 
that  they  obtained  possession  of  it  without  his  consent  or  knowl- 
edge, and  contrary  to  his  wishes  and  intentions ;  that  neither 
he,  nor  any  person  by  his  authority,  ever  called  at  the  bank 
and  procured  the  mortgage  or  bond,  for  the  purpose  mentioned 
in  the  bill ;  that  Anthony  went  to  New  York,  after  the  bond 
and  mortgage  were  signed,  and  without  having  the  mortgage, 
to  obtain  a  renewal  of  an  old  policy  of  insurance  on  the  prem- 
ises, taking  the  old  policy  with  him,  and  did  obtain  the  renew- 
al ;  and  that  he  is  informed  by  Anthony,  and  verily  believes, 
that  Anthony  never  obtained  the  mortgage  from  the  bank  for 
that  or  any  other  purpose. 

Mary  Ann  Reckless,  the  wife  of  Joseph  W.  Reckless,  answer- 
ing for  herself,  says  that  she  signed  the  mortgage  with  her  hus- 
band, at  the  time  and  place  and  in  the  manner  stated  by. him  ; 
that  she  never  knew  of  any  delivery  of  the  bond  and  mortgage 
to  the  complainants,  or  any  person  for  them ;  and  that  she 
knows  no  matter  or  thing  variant  from  the  facts  stated  by  J.  W. 
Reckless  in  the  answer,  or  in  any  way  inconsistent  therewith  ; 
and  that  she  knows  no  additional  fact  concerning  the  execution 
or  delivery  of  the  bond  and  mortgage. 

Joseph  W.  Reckless,  further  answering,  says  that  since  the 
date  of  the  bond  and  mortgage,  the  complainants  have  sued 
and  obtained  judgments  on  the  said  several  notes,  and  issued 
executions,  and  caused  the  property  described  in  the  mortgage, 
with  other  property,  to  be  levied  on  and  advertised  for  sale;  and 


JUNE  TERM,  1846.  433 

Commercial  Bank  v.  Reckless. 

that  his  wife  and  her  trustee  exhibited  their  bill  in  this  court, 
claiming  the  property  by  virtue  of  the  trust  deed  referred  to  in 
the  bill,  and  obtained  an  injunction  restraining  the  complainants 
from  selling  the  property  under  the  said  execution. 

The  defendants  admit  that,  on  June  llth,  1842,  they  conveyed 
the  premises  to  Nathan  Satterthwaite,  and  say  that,  before  their 
intermarriage,  the  said  Mary  Ann  was  seized  in  fee  of  the  prem- 
ises, and  it  was  agreed  between  them,  previous  to  their  marriage, 
and  that  it  was  the  agreement  on  which  the  marriage  contract 
was  entered  into,  that  all  the  property  of  the  said  Mary  Ann, 
real  and  personal,  should  be  conveyed  to  a  trustee,  upon  such 
trusts  as  would  secure  the  same  for  her  use,  and  beyond  the 
control,  and  free  from  the  debts  and  liabilities  of  her  said 
husband;  and  that  the  conveyance  to  the  said  Nathan  was  made 
in  pursuance  of  the  said  ante-nuptial  agreement,  upon  certain 
uses  and  trusts,  and  subject  to  certain  powers  and  limitations 
mentioned  in  the  deed,  (referring  to  the  deed.) 

A  replication  was  filed,  July  22<1,  1844.  A  decree  pro  con- 
fesso  was  taken  against  the  other  defendants  in  October,  1843. 

Anthony  Reckless  sworn  for  the  defendants. — [A  bond  being 
produced  by  J.  W.  Reckless,  and  shown  to  the  witness,  marked 
Exhibit  1  on  the  part  of  the  defendants,  he  says] — It  is  signed 
in  the  handwriting  of  his  -father,  J.  W.  Reckless,  and  is  the 
bond  referred  to  in  the  mortgage ;  that  he  was  present  when 
the  bond  and  mortgage  were  signed  by  his  father ;  they  were 
signed  at  his  father's  house  in  Araboy,  he  thinks,  about  ten 
days  or  two  weeks  after  they  bear  date;  his  father  was  then 
confined  to  his  house  by  sickness,  and  had  been,  for  two  or 
three  weeks;  he  was  not  confined  to  his  room  at  the  time  he 
signed  the  bond  and  mortgage;  during  his  sickness  he  had 
been  confined  to  his  room,  but  not  to  his  bed  ;  after  they  were 
signed  he  took  them  into  his  possession  ;  they  were  delivered  to 
him  by  his  father;  he  placed  them  with  his  private  papers  in  a 
small  trunk  ;  and,  in  the  course  of  two  or  three  days,  he  took 
the  mortgage  to  New  Brunswick,  for  the  purpose  of  showing  it 
to  the  clerk,  as  a  description  of  the  property  on  which  he  wished 
to  get  a  certificate  that  It  was  unencumbered  ;  previous  to 
taking  it  to  New  Brunswick,  he  did  not  show  it  to  any  one ; 


434  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

when  he  took  thf  mortgage  to  New  Brunswick  he  left  the  bond 
in  the  trunk  ;  he  gave  the  mortgage  to  Mr.  Booraem,  the  clerk, 
ia  New  Brunswick  ;  he  gave  no  instructions  to  have  it  re- 
corded ;  he  was  never  authorized  or  directed  by  his  father  to 
have  it  recorded  ;  he  does  not  know  why  the  clerk  recorded  it ; 
when  he  saw  the  clerk  the  next  day,  he  asked  him  for  the  certifi- 
cate and  mortgage  ;  the  clerk  gave  him  the  certificate,  and  said 
he  had  left  the  mortgage  in  his  office  to  be  recorded,  which  he 
said  was  probably  done ;  he  told  the  clerk  he  was  very  sorry 
he  had  had  it  recorded,  as  he,  the  witness,  did  not  intend  to 
have  had  it  done;  the  clerk  said  he  supposed  witness  wanted 
it  recorded,  and  therefore  he  had  it  done ;  this  conversation 
took  place  in  the  street,  in  New  Brunswick,  near  Stelle's  hotel ; 
he  took  the  certificate  home,  and  thinks  he  sent  it  to  the  presi- 
dent of  the  bank,  through  Mr.  Arnold,  but  is  not  certain  of  it; 
after  this  conversation  with  the  clerk,  he  did  not  inform  his 
father  what  had  been  done — not  immediately  ;  he  informed  him 
of  it  in  the  course  of  three  or  four  weeks ;  his  father  found  the 
mortgage  was  gone,  and  made  inquiry  about  it,  and  witness 
informed  him ;  his  father  disapproved  of  the  mortgage  being 
recorded ;  he  never  got  the  mortgage  from  the  clerk ;  his 
father  told  him  be  had  better  try  and  get  the  mortgage;  after 
the  bond  was  signed,  witness  never. took  it  out  of  his  father's 
house ;  at  that  time  he  knew  it  was  not  necessary  to  have  a 
bond  recorded  ;  previous  to  the  signing  of  the  bond  and  mort- 
gage, witness  had  a  conversation  with  some  of  the  officers  of 
the  bank  in  reference  to  having  a  bond  and  mortgage  exe- 
cuted ;  these  officers  were  the  cashier  and  Mr.  Bruen,  one  of 
the  directors;  witness  had  made  arrangements  with  them  to 
give  the  bank  a  bond  and  mortgage,  and  take  up  certain  notes 
which  the  bank  held  against  his  father;  the  amount  of  the 
notes  corresponded  with  the  amount  of  the  mortgage ;  the 
notes  were  to  be  given  up  when  the  bond  and  mortgage  were 
delivered  to  the  bank ;  there  was  no  agreement  as  to  the 
bond  and  mortgage  being  left  there  as  collateral  security  ;  wit- 
ness never  delivered  the  bond  to  the  bank  or  any  of  its  officers ; 
his  father  never  authorized  him  so  to-  do,  unless  the  bank  would 
give  up  the  notes  at  the  time  it  was  delivered ;  the  bond  and 
mortgage  are  in  witness'  handwriting.  £  Witness  here  desires 


JUNE  TERM,  1846.  435 


Commercial  Bank  v.  Reckless. 


to  correct  a  previous  part  of  his  deposition,  and  now  says  the 
bond  and  mortgage  were  signed  at  or  about  the  time  they  bear 
date ;  his  father  was  sick  a  great  deal  about  that  time,  and 
witness  attended  to  his  business  generally. 

On  cross-examination,  he  says  that  his  father,  when  he 
signed  the  bond  and  mortgage,  was  well  aware  of  what  he  was 
doing;  he  knew  the  contents  of  them  ;  witness  took  the  mort- 
gage to  the  clerk's  office  for  the  purpose  of  having  a  search 
made,  and  for  that  purpose  only  ;  he  asked  for  a  certificate 
that  there  was  no  encumbrance  on  the  property  described  in  the 
mortgage;  he  did  not  speak  of  it  as  his  father's  or  mother's; 
the  search  was  not  made  at  his  father's  request,  but  at  the 
request  of  the  president  of  the  bank ;  the  president  requested 
witness  to  have  the  search  made  ;  Mr.  H.  Bruen  was  president ; 
witness  said  nothing  to  his  father  about  having  the  search 
made ;  he  does  not  think  he  told  his  father  he  had  had  a  search 
made,  till  the  conversation  took  place  about  the  mortgage  being 
recorded  ;  he  is  not  certain  that  in  the  conversation  with  the 
clerk,  the  clerk  said  the  mortgage  was  probably  recorded  ;  he 
thinks  the  clerk  said  so  ;  when  he  got  the  certificate  he  asked 
the  clerk  for  the  mortgage;  the  reason  why  he  did  not  get  the 
mortgage  was  because  it  was  at  the  clerk.'s  office,  and  he  sup- 
posed that  when  he  went  home  the  arrangement  with  the  bank 
might  be  carried  out;  the  arrangement  between  his  father 
aud  the  bank,  of  which  he  speaks,  was  completed  when  he  left 
the  mortgage  in  the  clerk's  office ;  his  objection  to  having  the 
mortgage  recorded  was,  he  did  not  think  it  was  his  business  to 
have  it  done;  he  intended  to  give  it  to  the  bank  and  get  the 
notes,  and  let  the  bank  have  it  recorded  ;.  after  the  mortgage 
was  recorded  it  belonged  to  the  bank,  and  he  supposed  they 
would  give  him  the  notes,  as  the  mortgage  was  then  in  the 
clerk's  office ;  he  does  not  know  how  long  the  mortgage  was 
in  the  clerk's  office  ;  he  never  sent  or  went  for  it ;  he  does  not 
know  who  got  it  from  the  office ;  he  delivered  the  search, 
through  Mr.  Arnold,  to  the  bank,  because  he  wished  the  presi- 
dent of  the  bank  to  see  it ;  he  thinks  neither  the  president  nor 
any  of  the  officers  of  the  bank  ever  told  him  they  were  satis- 
fied ;  the  search  was  procured  for  the  bank  ;  after  it  was  pro- 
cured, and  the  mortgage  left  at  the  clerk's  office,  he  had  a  con- 


436  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

versation  with  the  cashier  relative  to  the  matter;  he  told  the 
cashier  the  mortgage  was  recorded  in  the  clerk's  office,  and  that 
he  would  like  to  give  the  bond  to  the  bank  and  take  up  the 
notes;  the  cashier  said  he  would  talk  with  the  president  about 
it;  it  was  some  days  before  witness  got  an  answer  from  the 
president,  whether  he  would  give  up  the  notes  or  not ;  the 
cashier  said  the  president  was  unwilling  to  give  up  the  notes,  as 
the  mortgage  was  intended  only  as  collateral  security  ;  witness 
told  him  that  was  not  the  understanding  on  his  part ;  lie  thought 
the  bank  intended  to  give  up  the  notes  ;  he  did  not  think  it  was 
right;  witness  did  not  ask  the  cashier  for  the  mortgage  at  the 
time;  he  does  not  recollect  asking  any  officer  of  the  bank,  at 
that,  or  any  other  time,  for  the  mortgage;  he  did  not  tell  Mr. 
Nichols,  or  any  other  officer  of  the  bank,  at  that,  or  any  other 
time,  that  he  would  get  the  mortgage  from  the  office ;  he  does 
not  know  why  he  did  not  at  that  time  ask  for  the  mortgage  ; 
he  considered  it  at  that  time  as  belonging  to  the  bank  ;  before 
the  bond  and  mortgage  were  signed,  he  took  either  them,  or 
the  ones  from  which  they  Were  copied,  to  the  bank,  for  inspec- 
tion ;  he  thinks  they  were  left  in  possession  of  the  bank  two  or 
three  days  ;  he  took  a  policy  of  insurance  also  to  the  bank, 
either  at  that  or  some  other  time;  he  afterwards  called  for 
these  papers,  and  the  cashier,  Mr.  Nichols,  gave  them  to  him  ; 
he  took  them  home  {o  his  father's  house;  a  part  of  the  ar- 
rangement between  his  father  and  the  bank  was,  that  a  policy 
of  insurance  should  be  given  on  the  mortgaged  premises;  such 
a  policy  was  made  out  by  the  North  River  Insurance  Company 
of  New  York,  for  the  amount  mentioned  in  the  mortgage;  it 
was  shown  to  the  bank  and  taken  from  them  again  ;  he  does 
not  think  it  was  ever  given  to  the  bank  to  keep  ;  he  thinks, 
but  is  not  certain,  that  it  was  shown  to  the  bank  about  the  time 
when  the  bond  and  mortgage  were  made ;  at  the  time  the 
mortgage  was  given,  the  bank  was  talking  about  commencing 
suits  against  his  father  ;  he  does  not  know  that  they  had  given 
his  father  notice  of  it ;  he  does  not  recollect  that  he  was  ever 
present  at  any  conversation  between  his  father  and  Mr.  John 
Arnold,  in  reference  to  the  notes  ;  when  he  left  the  mortgage 
with  the  clerk  he  did  not  notify  him  not  to  deliver  it  to  any 
other  person  ;  when  he  met  the  clerk  in  the  street  and  asked 


JUNE  TERM,  1846.  437 

Commercial  Bank  v.  Reckless. 

him  about  the  certificate  and  mortgage,  the  clerk  had  the  certifi- 
cate with  him. 

On  re-examination  on  the  part  of  the  defendants,  he  says 
that*  when  he  stated,  in  his  cross-examination,  that  the  arrange- 
ment was  completed  between  his  father  and  the  bank,  he 
meant  nothing  more  than  that  the  terms  of  the  agreement 
were  completed  ;  when  he  says  he  considered  that  the  mort- 
gage belonged  to  the  bank,  he  does  mean  to  say  he  thinks  the 
bank  ought  to  have  it,  but  only  that  it  legally  beloi.gtd  to  the 
bank. 

On  further  cross-examination,  he  says  that,  after  he  was  told 
by  the  cashier  that  the  bank  would  not  give  up  the  notes,  he 
did  not  say  to  the  cashier  that  he  considered  the  transaction  at 
an  end. 

James  A.  Nichols,  the  cashier  of  the  bank,  sworn  on  the  part 
of  the  complainant,  says  that  the  notes  in  question  were  dis- 
counted at  the  bank,  for  the  accommodation  of  Reckless;  they 
had  been  running  for  a  considerable  time;  the  notes  described 
in  the  bill  are  renewals  of  former  notes;  he  says  that  the  mort- 
gage was  given  as  collateral  security  for  the  payment  of  the 
note«;  that  Mrs.  Reckless  called  on  witness,  and  wished  to 
know  if  the  bank  would  not  take  a  mortgage  for  $3600,  to 
secure  the  amount  due  on  the  notes,  and  until  Mr.  Reckless 
should  be  able  to  raise  the  money  to  take  up  the  notes ;  witness 
directed  her  to  Mr.  M.  Bruen,  that  he  might  lay  the  proposal 
before  tk-e  board  of  directors ;  Mrs.  Reckless  met  Mr.  Bruen 
just  below  the  banking-house;  and,  subsequently,  the  board 
decided  to  take  the  mortgage;  at  this  time,  the  proposal  was, 
that  the  mortgage  should  be  given  on  the  homestead,  in 
Amboy ;  afterwards,  she  proposed  to  give  it  on  the  property 
described  in  the  mortgage;  witness  knows  that  a  bond  was  exe- 
cuted by  J.  W.  Reckless,  to  the  complainants;  he  has  seen  it; 
had  it  in  his  possession,  as  cashier  of  said  bank;  it  was  given  to 
witness,  as  such,  by  A.  Reckless,  son  of  J.  W.  Reckless  ;  witness 
has  not  the  bond  now  in  his  possession,  nor  has  the  bank ; 
the  bond  and  mortgage,  and  a  policy  of  insurance  on  the  prop- 
erty, wene  given  together  to  witness,  by  said  A.  Reckless,  at 
the  bank,  and  as  cashier  of  the  same;  the  papers  above  men- 
tioned were  all  executed  at  the  time  of  said  delivery;  witness 


438  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

thinks  he  saw  the  mortgage  before  execution  ;  thinks  the  mort- 
gage, or  a  rough  draft  of  it,  were  presented  to  the  bank  before 
execution,  to  see  whether  it  was  correct,  and  the  bank  were 
satisfied  with  them ;  after  this,  they  were  returned  to  A.  Reck- 
less by  witness,  for  the  purpose  of  having  them  recorded,  and 
that  the  policy  of  insurance  might  be  transferred  to  the  bank  ; 
the  bond  was  handed  over  at  the  same  time,  witness  being 
under  the  impression  that  it  was  necessary  to  record  the  bond  as 
well  as  the  mortgage;  the  president  directed  that  Mr.  Reck- 
less should  be  at  the  trouble  and  expense  of  recording  the 
papers,  as  well  as  preparing  them;  neither  the  witness  nor  the 
bank  have  ever  had  possession  of  the  bond  or  policy,  since; 
the  bank  obtained  possession  of  the  mortgage  from  the  clerk's 
office;  J.  W.  Reckless,  at  the  time  of  the  preparation  and 
delivery  of  said  papers,  was  confined  to  his  house  by  sickness, 
during  which,  A.  Reckless  acted  for  him  in  this  matter;  wit- 
ness does  not  know  that  Mr.' Reckless  ever  absolutely  refused  to 
return  the  bond ;  witness  sent  to  the  clerk's  office  for  the  mort- 
gage; thinks  the  bank  was  about  foreclosing,  at  that  time;  it 
was  a  long  while  before  it  was  sent  for;  the  bank  did  not  pay 
the  fees  for  recording,  to  the  knowledge  of  witness;  witness, 
during  the  time  the  mortgage  lay  at  the  clerk's  office,  supposed 
the  bond  was  there  with  it,  not  during  the  whole  time,  however, 
because  he  was  informed  it  was  not — was  so  informed  by  A. 
Reckless — up  to  which  time,  he  supposed  it  to  be  with  the  mort- 
gage, at  the  clerk's  office;  the  permission  of  the  insurance 
company  to  transfer  the  policy  to  the  bank,  was  obtained  by 
Mr.  Reckless,  or  some  one  for  him;  the  policy,  at  the  time 
witness  had  it,  had  a  blank  assignment  on  it,  not  filled  up,  it 
being  necessary  to  obtain  the  permission  of  the  company,  for 
this  purpose;  the  date  of  the  said  permission  was  March  15th, 
1841,  that  of  the  policy  being  March  8th,  1841;  witness 
obtained  his  knowledge  of  the  fact  of  permission  being  granted, 
and  the  date  thereof,  from  inspecting  the  books  of  the  company, 
in  New  York;  witness  did  not  see  the  policy  in  New  York  ; 
it  was  a  part  of  the  understanding,  and  a  condition  on  which 
the  mortgage  was  taken  by  the  bank,  that  the  property  should 
be  insured,  and  the  policy  assigned  to  the  bank;  the  bank 
never  paid  any  premium  for  insuring  the  property;  Joseph  W. 


JUNE  TERM,  1846.  4-°>9 

Commercial  Bank  v.  Reckless. 

feckless  and  his  wife,  in  February,  1841,  gave  another  niort- 
;age  on  the  property  then  belonging  to  Mrs.  R.;  gave  it  to  wit- 
ness ;  a  bond  was  given  at  the  same  time;  both  are  now  in 
witness'  possession  ;  witness  had  a  conversation  with  Mr.  Sat- 
terthwaite  in  regard  to  the  mortgage  mentioned  in  the  bill ;  Mr. 
Satterthwaite,  as  trustee  for  Mr.  Reckless  and  his  wife,  asked 
witness  if  the  bank  would  wait  and  let  the  mortgage  lie,  pro- 
vided he  would  pay  up  the  back  interest  and  pay  the  future  in- 
terest as  it  became  due;  witness  stated  to  him  that  there  were 
ther  amounts  due  the  bank  from  Mr.  Reckless,  and  that  wit- 
ness thought  it  would  be  necessary  to  make  some  arrangement 
about  that  before  the  bank  would  consent  to  wait ;  Mr.  Satter- 
thwaite replied  that  he  had  nothing  to  do  with  any  other  debts; 
that  he  had  only  to  treat  about  this  mortgage ;  the  conversa- 
tion was  in  the  street;  it  was  commenced  by  Mr.  Satterthwaite; 
he  was  then  attending  to  some  repairs  about  the  property  de- 
scribed in  the  mortgage ;  witness  thinks  it  was  in  the  summer 
before  last  (1842).  [This  conversation  was  objected  to.] 

On  cross-examination,  he  says  he  got  his  mortgage  recorded ; 
he  does  not  recollect  whether  he  took  it  to  the  clerk's  office 
himself,  or  sent  it;  rather  thinks  he  sent  it  a  few  days  after  it 
was  delivered  to  him,  and  before  the  papers  for  the  bank  were 
left  with  him  ;  witness  believes  he  sent  both  bond  and  mort- 
gage to'  be  recorded  ;  thinks  he  got  them  from  the  office  by 
sending  an  order  for  them ;  he  never  had  taken  a  bond  and 
mortgage  from  any  person  before  that,  either  for  himself  or  for 
the  bank ;  he  mentioned  to  the  president  of  the  bank  that  he 
had  delivered  the  papers  to  A.  Reckless ;  thinks  the  president 
told  him  to  deliver  the  papers  to  A.  Reckless  for  record  ;  is  sat- 
isfied he  told  the  president  he  had  delivered  the  papers  to  A. 
Reckless  to  be  recorded,  and  the  policy  to  be  assigned ;  the 
president  expressed  no  surprise  that  witness  had  delivered  the 
bond ;  witness  required  no  receipt  from  A.  Reckless ;  he  ex- 
pected the  policy  to  be  returned  as  soon  as  it  should  be  as- 
signed ;  he  made  inquiry  after  the  papers  about  three  months 
afterwards,  it  might  have  been  ;  made  the  first  inquiry  of  A. 
Reckless ;  thinks  the  question  was  asked  by  some  one  of  the 
directors,  whether  witness  had  re-obtained  the  papers ;  witness 
remained  perfectly  easy,  during  these  three  months,  in  relation 


440  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

to  the  papers,  because  he  presumed  that  the  bond  and  mortgage 
were  at  the  clerk's  office,  and  the  policy  at  the  office  in  New 
York  ;  A.  Reckless  was  to  return  the  policy  to  witness ;  when 
A.  Reckless  took  the  bond  with  the  mortgage  for  record,  he  did 
not  say  he  wanted  the  bond  for  record,  but  witness  thought  it 
was  necessary ;  a  search  was  made  previous  to  executing  the 
mortgage  ;  he  thinks  he  informed  the  complainants'  solicitor  as 
to  the  means  by  which  A.  Reckless  obtained  the  bond,  in  order 
to  enable  him  to  draw  the  bill ;  A.  Reckless,  at  the  time  of  the 
negotiation,  lived  with  his  father,  in  Am  boy  ;  he  left  soon  after, 
for  Monmouth  ;  the  first  time  he  saw  him  after  his  return  from 
Monmouth,  witness  conversed  with  him  respecting  the  papers, 
witness  introduced  the  subject;  he  thinks  the  complainants'  so- 
licitor read  the  bill  of  complaint  to  him,  the  witness;  as  witness 
recollected  them  at  that  time,  the  facts  stated  therein  were  cor- 
rect; Mr.  Reckless,  during  this  transaction,  was  in  embarrassed 
circumstances ;  the  directors  felt  uneasy  respecting  some  of 
these  debts  ;  they  were  desirous  to  secure  them  ;  he  has  under- 
stood that  the  property  embraced  in  the  mortgage  formerly  be- 
longed to  John  Patrick,  the  first  husband  of  Mrs.  Reckless ;  he 
first  discovered  it  was  unnecessary  to  record  a  bond  in  New 
Jersey,  from  Mr.  Paterson. 

Being  re-examined-in-chief,  he  says  time  was  given  to  Mr, 
Reckless,  and  the  mortgage  in  question  taken,  in  order  that  Mr. 
Reckless  might  be  enabled  to  raise  the  money,  Mrs.  R.  then 
stating  that  to  sell  the  property  at  that  time  would  be  a  great 
sacrifice;  the  property  of  Mr.  Reckless  was  considered  by  the 
officers  of  the  bank,  at  the  time  of  executing  this  bond  and 
mortgage,  sufficient  to  pay  all  his  debts;  the  understanding  of 
the  bank  and  Mr.  Reckless  was  that  the  bank  should  retain  the 
notes  also,  and  that  the  bond  and  mortgage  were  taken  as  col- 
lateral security  ;  thinks  the  bank  would  not  have  consented  to 
take  the  bond  and  mortgage  in  lieu  of  the  notes  ;  he  never  would 
have  re-delivered  the  papers  to  A.  Reckless  unless  under  the 
supposition  that  they  would  be  returned  in  good  faith  ;  he  had 
at  that  time  every  disposition  to  believe  that  the  agreement 
would  be  carried  out  and  the  papers  returned  in  good  faith  ;  m 
satisfaction  of  this  mortgage,  witness,  as  cashier,  would  have 
delivered  up  the  notes  to  Mr.  Reckless. 


JUNE  TERM,  1846.  441 

•Commercial  Bank  v.  Reckless.  , 

Being  again  cross-examined,  he  says  that,  when  he  saya 
that  the  property  of  Mr,  Reckless  was  considered,  at  the  time 
of  executing  this  bond  and  mortgage,  sufficient  to  pay  all  J.  W. 
Reckless'  debts,  he  means  all  his  property,  as  well  derived  from 
his  wife  as  otherwise, 

Matthias  Bruen,  sworn  for  complainants,  says  that,  while 
walking  in  the  street,  at  Am  boy,  about  the  time  of  the  giving 
the  bond  and  mortgage  in  question,  he  was  met  by  Mrs.  Reck- 
less, who  said  she  had  just  been  conversing  with  Mr.  Nichols, 
who  had  referred  her  to  witness  ;  he  asked  her  what  her  object 
was  ;  she  replied  that  they  had  had  notice  that  the  notes  held 
by  the  bank  against  Mr.  Reckless  were  to  be  put  in  suit;  wit- 
ness said  it  was  so  ;  that  they  had  been  running  a  long  time, 
and  that  the  directors  had  resolved  to  bring  the  business  to  a 
close;  she  appeared  to  be  in  great  trouble,  and  said  she  hoped 
witness  would  not  press  the  thing ;  he  answered  that  the  board 
had  no  desire  to  do  anything  unreasonable ;  to  which  she  said 
she  would  secure  the  claim  of  the  bank  ;  witness  asked  her  in 
what  way  ;  she  answered,  by  giving  a  mortgage  on  her  own 
property,  or  pro|>erty  that  once  was  hers  ;  witneas  said  he  un- 
derstood the  property  then  belonged  to  her  husband  ;  that  she 
had  made  it  over  to  John  Reckless,  and  he  to  his  father,  of 
same  date ;  witness  then  said  he  would  lay  the  case  before  the 
board  ;  that  he  was  but  one  of  the  board  ;  and  they  would  de- 
termine what  to  do ;  he  did  lay  the  circumstances  before  the 
board,  at  their  next  meeting,  and  they  agreed  to  take  a  bond 
and  mortgage  as  collateral  security  for  the  notes  due,  and  to 
suspend  prosecution  on  the  notes ;  he  had  a  conversation  with 
A.  Reckless ;  he  told  witness  he  would  have  all  the  papers  ex- 
ecuted, and  would  leave  them  with  the  cashier;  at  the  time 
of  this  conversation,  Mrs.  Reckless  proposed  to  give  a  mortgage 
on  the  homestead,  which  the  bank  preferred  ;  but  Mrs.  Reck- 
less afterwards  asked  the  bank  to  take  the  mortgage  on  the  pre- 
mises described  in  the  mortgage ;  the  bank,  at  first,  did  not 
think  favorably  of  the  proposal  to  take  any  mortgage,  thinking 
the  notes  had  been  too  long  running,  and  witness  himself  was 
opposed  to  it ;  but  Mrs.  Reckless  appealed  to  his  feelings  and 
wept,  and  he  consented,  and  so  did  the  bank,  to  accommodate 
her  and  her  husband;  at  the  time  the  bank  acceded  to  the 

VOL.  I.  2E 


442  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

proposal,  it  was  understood  expressly  that  the  notes  were  to  be 
retained  by  the  bank  ;  and  the  bond  and  mortgage  were  as  ad- 
ditional security  ;  such  was  the  understanding,  not  only  of 
Mr.  Reckless  and  wife,  but  also  of  some  of  the  endorsers  on  the 
notes  ;  the  bond  and  mortgage  would  not  have  been  accepted 
if  the  condition  had  been  that  the  notes  were  to  be  given  up. 

On  cross-examination,  he  says  he  is  not  a  stockholder  in  the 
bank ;  that  he  parted  with  his  stock  on  the  Wednesday  or 
Thursday  before  the  day  of  his  examination ;  he  says  it  is 
very  likely  he  parted  with  it  in  order  to  be  a  witness  in  the 
cause,  but  does  not  say  positively ;  that  he  has  no  interest  in 
that  stock  at  present ;  his  interest  in  the  stock  was  somewhere 
about  1500  shares;  that  he  is  not  a  director;  that  he  resigned 
his  office  as  such  a  few  days  before  his  examination. 

Nicholas  Booraeru,  sworn  for  the  complainants,  says  he  is, 
and  was  on  the  24th  March,  1841,  clerk  of  Middlesex;  being 
shown  the  mortgage,  he  says  the  endorsement  of  registry  on  it 
is  in  his  handwriting;  he  does  not  recollect  who  left  the  mort- 
gage with  him  ;  but,  from  the  endorsement  on  it,  he  knows  it 
came  into  the  office  on  the  24th  March,  1841 ;  he  supposes  it 
was  brought  to  the  office  for  record,  or  he  should  not  have  re- 
corded it;  he  does  not  remember  that  it  was  brought  to  the 
office  by  A.  Reckless;  cannot  say  who  brought  it;  he  has  no 
recollection  that  A.  Reckless  ever  asked  him  for  a  certificate  of 
encumbrances  on  the  property  mentioned  in  the  mortgage,  or 
any  other  property  of  J.  W.  Reckless  ;  it  is  not  usual  for  him 
to  carry  in  his  pocket  certificates  of  search  that  he  has  made. 
Unless  requested  otherwise,  he  leaves  them  in  the  office  to  be 
called  for;  he  does  not  remember  how  long  the  mortgage  re- 
mained in  the  office  after  it  was  recorded,  nor  does  he  know 
how  it  was  taken  out;  he  is  under  the  impression  that  he 
sent  the  mortgage  to  the  cashier  of  the  Commercial  Bank,  at  his 
request  expressed  in  a  letter;  yet  he  may  be  mistaken,  as  the 
cashier  had  a  mortgage  of  his  own  in  the  office  about  the  same 
time,  given  to  him  by  the  same  parties  who  executed  the  mort- 
gage to  the  bank ;  he  does  not  know  who  paid  for  recording 
the  mortgage  to  the  bank  ;  he  should  not  have  recorded  the 
mortgage  unless  he  had  understood,  at  the  time  it  was  left  in 
the  office,  that  it  was  to  be  recorded ;  he  does  not  remember 


JUNE  TERM,  18-16.  443 

Commercial  Bank  v.  Reckless. 

that  he  was  ever  notified  not  to  deliver  the  mortgage  to  the 
bank;  if  he  had  received  such  a  notice,  he  should  not  have  de- 
livered it  without  an  investigation. 

A  certificate  of  the  secretary  of  the  North  River  Insurance 
Company,  that  on  the  15th  March,  1841,  consent  was  given  by 
that  company  for  the  assignment  of  the  policy  to  the  Commer- 
cial Bank,  was  admitted  in  evidence. 

It  was  also  agreed  by  and  between  the  solicitors  that  certain 
judgments  obtained  by  the  complainants  against  J.  VV.  Reck- 
less, in  the  Supreme  Court,  in  November,  1842 — one  for  $4029, 
and  the  other  for  $1014 — be  admitted  in  evidence  for  the  de- 
fendants; and  that  the  deposition  of  Anthony  Reckless,  though 
not  closed,  be  admitted  and  read  in  evidence. 

P.  D.  Froom,  for  the  complainants. 

J.  Van  Dyke,  for  the  defendants.  He  cited  Saxton's  Oh. 
458 ;  10  John.  It.  524,  540,  542,  545. 

THE  CHANCELLOR.  The  ground  taken  by  the  bill  is  short- 
ly this :  that  the  bond  and  mortgage  were  given  as  collateral 
security  for  the  notes;  that  there  was  an  absolute  and  final  de- 
livery of  the  bond  and  mortgage  to  the  bank,  in  completion  of 
an  agreement  to  give  them  as  collateral  security  for  the  notes; 
that  after  such  delivery,  J.  "W.  Reckless,  or  some  person  for  him 
and  in  his  name  and  by  his  authority,  under  the  plea  or  pre- 
tense of  procuring  the  assignment  to  the  complainants  of  a 
policy  of  insurance  on  the  premises,  and  the  assent  of  the  insu- 
rance company  to  that  assignment,  procured  the  bond  and 
mortgage  from  the  complainants,  with  the  full  understanding 
and  belief  of  the  complainants  that  they  were  to  be  returned  to 
the  complainants  when  the  object  for  which  they  were  taken 
was  accomplished  ;  that  the  mortgage  was  returned  to  the  com- 
plainants, but  that  J.  W.  Reckless,  at  all  times  thereafter,  refused 
to  deliver  up  the  bond  to  the  complainants. 

From  this  statement  we  should  conclude  that  the  matter  of 
insurance,  and  of  the  assignment  of  the  policy  to  the  com- 
plainants, were  no  part  of  the  arrangement  contemplated  by 
the  parties ;  that  the  bond  and  mortgage  had  been  delivered  to 


444  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

and  received  by  the  complainants  absolutely  and  finally  ;  that 
the  transaction  as  contemplated  was  completed;  and  that  J.  \V. 
Reckless,  or  some  person  for  him,  by  a  pretence,  cheated  the 
bank  out  of  the  possession  of  the  bond  and  mortgage,  and  after- 
wards returned  the  mortgage  to  the  bank,  but  refused  to  deliver 
up  the  bond  to  them.  The  cashier  of  the  bank,  sworn  as  a  wit- 
ness for  the  complainants,  says  that  the  complainants'  solicitor 
read  the  bill  of  complaint  to  him,  and  that,  as  he  recollected 
them  at  that  time,  the  facts  therein  stated  were  correct. 

The  testimony  of  the  cashier  is  the  only  evidence  produced 
in  support  of  the  allegation  in  the  bill  of  the  delivery  of  the 
bond  and  mortgage;  and  if  it  stood  uncontradicted,  it  would  be 
very  meagre  evidence  of  a  delivery  of  the  papers,  in  the  legal 
sense  of  the  word,  and  in  the  sense  in  which  the  word  is  used 
in  the  bill,  even  by  the  son,  and  much  more  insufficient  evi- 
dence of  such  a  delivery  by  the  authority  of  the  grantors.  The 
statement  made  by  the  cashier  in  his  testimony,  is  essentially 
variant  from  the  case  made  by  the  bill,  and  the  effect  of  this 
variance  is  not  avoided  by  his  saying,  in  his  testimony,  that 
the  facts  stated  in  the  bill  were  correct,  as  he  recollected  them 
at  the  time  the  complainants'  solicitor  read  the  bill  to  him.  In- 
stead of  an  absolute  delivery  of  the  bond  and  mortgage,  and 
the  subsequent  obtaining  of  the  possession  of  them  by  the  mort- 
gagor, or  his  son,  on  a  pretence,  and  the  return  of  the  mortgage 
to  the  complainants,  which  is  the  case  made  by  the  bill,  the 
cashier,  when  sworn  in  the  cause,  shows  that  it  was  a  part  of 
the  understanding,  and  a  condition  on  which  the  mortgage  was 
to  be  taken  by  the  bank,  that  the  property  should  be  insured 
and  the  policy  assigned  to  the  bank ;  that  the  papers  were  re- 
turned by  him,  the  cashier,  to  Anthony  Reckless,  for  the  pur- 
pose of  having  them  recorded  and  that  the  policy  of  insurance 
might  be  transferred  to  the  bank ;  that  the  president  of  the  bank 
directed  that  J.  W.  Reckless  should  be  at  the  trouble  and  ex- 
pense of  recording  the  papers  as  well  as  preparing  them ;  and 
that  the  bank  afterwards  obtained  possession  of  the  mortgage 
from  the  clerk's  office,  without  asking  the  consent  of  the  mort- 
gagors, or  either  of  them,  or  any  person  acting  for  them,  J.  \V. 
Reckless  having  possession  of  the  bond,  and  he,  or  his  sou  act- 
ing for  him,  having  long  before  refused  to  deliver  the  bond. 


JUNE  TERM,  1846.  445 

Commercial  Bank  v.  Reckless. 

This  is  a  remarkable  failure  of  testimony  to  support  the  case 
made  by  the  bill.  And  if  we  could  give  to  this  testimony  ail 
the  weight  it  would  be  entitled  to  if  the  bill  (prepared  on  advise- 
ment with  this  witness  as  to  the  facts,  as  he  himself  states,)  had 
stated  the  facts  as  they  are  stated  by  the  cashier  in  his  testimony, 
the  testimony  is  insufficient  to  show  a  completion  of  the  arrange- 
ment and  a  delivery  of  the  papers  thereupon.  If  the  papers 
were  ever  in  the  cashier's  hands  after  they  were  executed,  they 
were  incomplete,  according  to  the  cashier's  own  account  of  what 
the  arrangement  was ;  the  policy  had  not  been  transferred  ;  and 
all  the  papers  were  handed  back  to  A.  Reckless  for  the  purpose 
of  having  them  completed,  by  the  procurement  by  the  mortgagor 
of  a  transfer  to  the  bank  of  the  policy  of  insurance,  and,  the 
cashier  says,  to  be  recorded  ;  the  president  having  directed  that 
J.  W.  Reckless  should  be  at  the  trouble  and  expense  of  record- 
ing the  papers. 

It  seems  to  me  it  would  be  to  indulge  in  great  latitude  in 
aid  of  the  bank,  the  complainants  in  the  cause,  and  who  are, 
therefore,  to  make  out  their  case  affirmatively,  to  say  that,  not- 
withstanding the  papers  were  BO  handed  back  to  A.  Reckless 
for  such  purpose,  and  with  such  directions,  the  previous  posses- 
sion of  the  papers  by  the  cashier  is  now  to  be  considered  as  a 
possession  on  an  absolute  and  final  delivery. 

Again,  whether  the  arrangement  was  that  the  bond  and  mort- 
gage were  to  be  substituted  for  the  notes,  or  were  to  be  merely 
collateral  security,  it  was  an  arrangement  which  J.  W.  Reckless 
might  make  or  decline  to  make  at  his  pleasure,  and  on  such 
terms  as  he  pleased.  And  if  the  papers  were  handed  back  to 
him,  with  a  requirement  that  he  should  have  them,  or  the  mort- 
gage, recorded  at  his  own  expense,  he  was  at  perfect  liberty  to 
decline  doing  so,  and  to  refuse  to  deliver  the  papers,  Nay,  if 
he  had  afterwards  sent  the  mortgage  to  the  clerk's  office  to  be 
recorded,  yet,  unless  he  left  it  with  the  clerk  with  such  direc- 
tions as  would  amount  to  a  delivery  to  the  bank,  he  could,  at 
any  time  take  back  the  mortgage  from  the  clerk  and  refuse  to 
deliver  the  papers,  either  with  or  without  reason.  The  arrange- 
ment contemplated  was  purely  voluntary  on  his  part. 

The  case  made  by  the  bill  is  not  sustained.     And  the  facts 


446  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

stated  by  the  cashier  in  his  testimony,  are  not  sufficient,  in  my 
judgment,  to  show  a  delivery. 

But  if  a  delivery  could  be  affirmed  by  the  court  on  the  testi- 
mony of  the  cashier  uncontradicted,  it  is  but  the  testimony  of  a 
single  witness,  in  opposition  to  the  positive  denial  of  the  answer. 
And,  so  far  from  finding  circumstances  equivalent  to  another 
witness,  in  corroboration  of  the  allegation  of  delivery,  the  cir- 
cumstances, and  the  general  features  aud  outline  of  the  case,  are 
strongly  in  corroboration  of  the  answer.  And,  beyond  this,  the 
testimony  of  the  cashier,  if  he  means  to  say  there  was  a  delivery, 
in  the  legal  sense  of  that  word  in  this  respect,  is  contradicted  by 
the  very  person  who,  the  cashier  says,  gave  the  papers  to  him, 
and  to  whom  he  returned  them. 

It  was  said  on  the  argument  on  the  part  of  the  complainants, 
that  there  were  discrepancies  between  the  answer  of  the  defend- 
ant and  the  testimony  of  A.  Reckless ;  and  the  court  was 
asked,  for  that  reason,  to  disregard  the  answer  altogether,  and 
to  give  no  weight  to  its  denial  of  delivery.  I  see  no  greater  dis- 
crepancies between  the  answer  and  the  testimony  of  A.  Reckless 
than  there  are  between  the  bill  and  the  testimony  of  the  cashier. 
Besides,  discrepancies  in  incidental  matters  between  the  answer 
smd  a  witness  called  to  support  it,  cannot  overcome  the  denial 
of  the  answer  of  the  material  allegation  of  the  bill.  And  in 
this  case,  the  material  allegation  of  the  bill  denied  by  the  answer, 
that  is  to  say,  the  delivery,  is  contradicted  by  the  witness 
called  in  support  of  the  answer,  the  person  who  is  alleged  to 
have  made  the  delivery,  aud  thus  the  denial  of  the  delivery 
made  in  the  answer  is  supported.  The  zeal  of  counsel  might 
prompt  the  idea  that  both  the  answer  and  the  witness  in  support 
of  it  should  be  disregarded  in  this  case;  but  the  court  cannot 
see  anything  in  the  case  to  call  for  such  a  sacrifice,  much  less 
to  make  such  a  sacrifice  on  the  testimony  of  a  single  witness  for 
the  complainants,  giving,  in  his  testimony,  an  essentially  dif- 
ferent version  of  the  case  from  that  given  in  the  bill  drawn 
under  his  advisement  as  to  the  facts.  I  know  of  no  reason  for 
giving  to  the  testimony  of  a  witness  standing  in  the  position  of 
this  witness,  any  more  potency  than  is  allowed  to  the  testimony 
of  any  other  single  witness  in  opposition  to  an  answer.  But,  in 
this  case,  the  court  is  asked  to  break  down,  not  only  the  answer, 


JUNE  TERM,  1846.  447 


Commercial  Bank  v.  Reckless. 


but  the  testimony  of  a  witness  in  full  support  of  it,  on  the  single 
testimony  of  the  cashier  of  the  bank.  I  do  uot  see  that  the 
complainants  can  reasonably  expect  this. 

Next,  the  bank  allege,  in  their  bill,  that  the  bond  and  mort- 
gage were  to  be  given  as  collateral  security  for  the  notes,  and, 
as  the  case  stands,  it  would  be  necessary  for  the  bank  to  sustain 
this  position  affirmatively,  if  they  could  have  prevailed  on  the 
other  point. 

Now,  the  recital  of  the  mortgage  is  as  follows:  "Whereas, 
Joseph  W.  Reckless,  of  the  first  part,  is  justly  indebted  to  the 
said  party  of  the  second  part,  in  the  sum  of  three  thousand  six 
hundred  dollars,  secured  to  be  paid  by  a  certain  bond  or  obli- 
gation, bearing  even  date  with  these  presents,  in  the  penal  sum, 
<fec.,  conditioned  for  the  payment  of  the  said  first-mentioned  sum 
of  three  thousand  six  hundred  dollars,  on  or  before  the  5th  day 
of  March,  whioh  will  be  in  the  year  of  our  Lord  1842,  with 
lawful  interest  from  the  date  thereof,  to  be  paid  half  yearly,"  <fec, 
The  bond  and  mortgage  were  dated  March  5th,  1841.  An 
absolute  bond,  then,  was  drawn  for  three  thousand  six  hundred 
dollars,  and  a  mortgage  to  secure  the  bond.  Nothing  was  said 
about  the  notes,  or  that  the  bond  and  mortgage  were  merely 
additional  security,  either  in  the  bond  or  in  the  mortgage. 

There  was  no  obligation  resting  on  Reckless  to  give  a  bond 
and  mortgage,  at  all.  The  bank  had  the  notes  and  endorse- 
ments on  which  they  loaned  their  money;  and  no  object  or 
motive  <#n  be  perceived  to  induce  Reckless  to  give  a  bond  and 
mortgage  for  the  amount  due  on  the  notes,  except  that  of 
relieving  his  endorsers,  by  taking  up  the  notes.  It  is  hardly 
conceivable  that  Reckless  would  be  willing  to  give  an  absolute 
bond  and  mortgage  for  three  thousand  six  hundred  dollars,  full 
and  complete  evidence  of  indebtedness  to  that  amount,  beyond 
the  amount  of  the  notes,  and  leave  the  notes  with  the  bank,  and 
subject  himself  to  the  hazard  of  proving  or  failing  to  prove  that 
they  were  for  the  same  debt.  No  prudent  man  would  do  so,  in 
a  transaction  with  an  individual;  and  we  are  not  to  presume 
that  Reckless,  or  any  other  person,  would  have  more  confidence 
iu  a  corporation  than  in  an  individual. 

With  these  remarks  in  view,  we  shall  not  be  surprised  to  find 
that  the  effort  on  the  part  of  the  bank  to  sustain  the  position 


448  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

they  take  on  this  part  of  the  case,  is  weak,  and  the  testimony  on 
which  they  rely,  entirely  unsatisfactory. 

The  bill,  after  stating  the  notes,  says  that,  for  the  better 
securing  the  same,  and  as  collateral  security  therefor,  J.  W. 
Reckless  executed  his  bond  for  three  thousand  six  hundred  dol- 
lars, the  amount  of  said  notes,  and  the  mortgage  in  question, 
to  secure  the  bondj  and  the  bill  says  the  complainants  insist 
that,  "as  the  mortgage  was  given  as  security  for  the  payment 
of  the  notes,  their  right  in  such  security  is  good  and  perfect, 
independently  of  the  bond,  which  was  not  the  evidence  of  the 
debt,  but  merely  designated  the  amount  for  which  security  was 
given. " 

The  testimony  on  the  part  of  the  complainants  may  be  suffi- 
cient to  show  that  the  bank  intended  to  get  the  bond  and  mort- 
gage, and  retain  the  notes,  too,  but  it  is  insufficient  to  show  that 
Mrs.  Reckless  consented  to  such  an  arrangement,  and  still  more 
insufficient  to  show  that  J.  W.  Reckless  consented  to  it.  The 
two  portions  of  the  testimony  relied  on  by  the  complainants  to 
show  that  Mrs.  Reckless  consented  to  such  an  arrangement, 
are  as  follows :  The  cashier  says  that  Mrs.  Reckless  called  on 
him,  and  wished  to  know  if  the  bank  would  not  take  a  mort- 
gage to  secure  the  amount  due  on  the  notes,  and  until  Mr. 
Reckless  should  be  able  to  raise  the  money  to  take  up  the  notes. 
Does  the  cashier  mean  to  say  that  the  last  clause,  "  to  take  up 
the  notes,"  was  the  language  of  Mrs.  Reckless?  And  if  it  was, 
and  the  whole  sentence  together,  is  to  be  taken,  from  the  lan- 
guage of  a  woman  in  distress,  to  mean  that  a  bond  and  mort- 
gage were  to  be  given  as  collateral  security  for  the  notes,  yet. 
the  bond  and  mortgage  were  not  so  drawn,  and  there  is  noth- 
ing to  show  that  she  consented  to  the  delivery  of  an  absolute 
bond  and  mortgage,  making  no  reference  to  the  notes.  Mat- 
thias Bruen,  in  his  testimony,  says  that  Mrs.  Reckless,  in  her 
conversation  with  him,  appeared  to  be  in  great  distress,  and 
said  that  she  would  secure  the  claim  of  the  bank.  These  are 
the  only  two  clauses  in  the  testimony  on  which  the  allegation 
of  the  complainants,  that  the  bank  were  to  have  this  absolute 
bond  and  mortgage,  and  retain  the  notes,  too,  and  that  Mrs. 
Reckless  consented  to  it,  rests.  Their  insufficiency  for  such  a 
purpose  is,  it  seems  to  me,  apparent. 


.  JUNE  TERM,  1846  419 

Commercial  Bank  v.  Reckless. 

But  what  is  the  testimony  relied  on  to  show  that  J.  W.  Reck- 
less ever  consented  to  such  an  arrangement?  It  is  as  follows  : 
The  cashier  says  the  understanding  of  the  bank  and  Mr. 
Reckless  was,  that  the  bank  should  retain  the  notes  also,  and 
that  the  bond  and  mortgage  were  taken  as  collateral  security. 
Where  did  the  cashier  get  his  authority  for  saying  that  it  was 
the  understanding  of  Mr.  Reckless  that  the  bank  should  retain 
the  notes?  Mr.  Reckless  was  confined  to  his  house  by  sickness 
during  the  whole  period  of  the  negotiation,  and  until  it  was 
broken  off,  and  it  is  not  pretended  that  the  cashier  saw  him 
within  that  period.  Matthias  Bruen,  in  his  testimony,  says 
that  at  the  time  the  bank  acceded  to  the  proposal,  it  was  under- 
stood expressly  that  the  notes  were  to  be  retained  by  the  bank, 
and  the  bond  and  mortgage  were  as  additional  security.  By 
whom  was  it  so  understood  ?  This  witness  has  before  said  that 
Mrs.  Reckless  proposed  to  him  that  she  would  secure  the  claim 
of  the  bank,  that  he  told  her  he  would  lay  the  case  before  the 
board  ;  that  he  did  so,  at  their  next  meeting,  and  they  agreed 
to  take  a  bond  and  mortgage  as  collateral  security  for  the  notes. 
It  is  apparent  that,  thus  far,  the  witness  says  nothing  more 
thaji  that  when  Mrs.  R.'s  proposal  to  secure  the  claim  of  the 
bank  was  laid  before  the  board,  the  board  agreed  to  take  a 
bond  and  mortgage  as  collateral  security  for  the  notes.  There 
was  nothing  in  the  nature  or  language  of  Mrs.  R.'s  proposal 
to  bind  her,  even  if  she  had  been  a  single  woman,  by  the 
agreement  of  the  directors  among  themselves,  to  take  a  bond 
and  mortgage  as  collateral.  That  was  not  the  proposal  of  Mrs. 
Reckless.  The  witness  then  proceeds  with  this  general  remark  : 
''Such  was  the  understanding,  not  only  of  Mr.  Reckless  and 
wife,  but  also  of  some  of  the  endorsers  on  the  notes."  Now, 
considering  the  confinement  of  Mr.  Reckless  by  sickness,  and 
that  it  does  not  appear  that  this  witness  ever  spoke  with  Mr. 
Reckless  on  the  subject,  it  is  asking  too  much  to  ask  the  court 
to  decree  on  such  testimony,  (it  relating,  too,  to  a  time  prior  to 
the  drawing  of  the  mortgage,)  that  Reckless  consented  to  de- 
liver, and  did  ddiver,  an  absolute  bond  and  mortgage,  making 
no  reference  to  the  notes,  and  consented  also  to  leave  the  notes 
and  the  endorsements  thereon  with  the  bank. 

But  again,  if  such  could  have  been  the  original  understand- 


450  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

ing  of  J.  W.  Reckless,  before  the  papers  were  drawn,  yet  he 
was  under  no  obligation  to  carry  out  such  an  arrangement.  It 
will  not  be  contended  that  a  bill  would  be  sustainable  to  compel 
the  performance  of  such  an  agreement,  and  the  mortgage, 
when  afterwards  drawn,  being  drawn  simply  to  secure  a  bond 
mentioned  therein,  J.  W.  Reckless  not  only  had  the  right  to 
say,  but  a  regard  for  his  own  interest  required  him  to  say,  that 
the  bond  and  mortgage,  as  drawn,  should  not  be  delivered  un- 
less the  notes  were  given  up.  And  J.  W.  Reckless  being  sick, 
and  his  son  attending  to  his  business  for  him,  it  was  the  duty 
of  the  son  to  refuse  to  deliver  the  said  bond  and  mortgage  un- 
less the  notes  were  given  up;  and  he  swears  he  did  so  refuse, 
and  I  can  see  no  reason  for  doubting  it.  It  was  his  duty  to 
refuse  unless  otherwise  directed  by  his  father,  and  of  this  there 
is  no  proof.  And  yet,  in  a  case  in  which  the  complainants 
must  have  been  well  aware  that  a  delivery  of  the  papers  could 
not  have  been  compelled  by  the  court,  the  court  is  asked  to  de- 
cree, on  the  evidence  in  this  cause,  that  the  papers  were  actu- 
ally delivered  ;  and  that  the  mortgage,  taken  by  the  complain- 
ants from  the  clerk's  office,  long  after  the  refusal  of  the  son, 
acting  for  his  father,  to  deliver  the  bond,  (the  bond,  the  prin- 
cipal instrument,  being  still  in  the  possession  of  J.  W.  Reck- 
less,) shall  be  decreed  to  be  a  valid  security,  independent  of  the 
bond.  I  venture  to  say  that  no  such  decree  was  ever  before 
asked  on  such  testimony  as  is  presented  to  the  court  in  this 
case. 

It  seems  there  were  other  debts  due  from  J.  W.  Reckless  to 
the  bank,  besides  the  amount  secured  by  these  notes  with  en- 
dorsers. This  may  account  for  the  desire  of  the  bank  to  get 
the  bond  and  mortgage  in  the  shape  in  which  they  were,  and 
retain  the  notes. 

It  was  said  in  the  argument  that  the  possession  of  the  mort- 
gage was  presumptive  evidence  of  its  delivery.  Whether  the 
possession  of  a  mortgage  given  to  secure  a  bond,  the  bond  re- 
maining in  the  possession  of  the  obligor,  and  he  refusing  to 
deliver  it,  would  be  any  evidence  of  the  delivery  of  the  mort- 
gage, is  a  question  which  it  is  not  necessary  to  consider  in  this 
case.  The  possession  of  a  deed  by  the  grantee  named  therein, 
and  the  possession  of  a  bond  and  mortgage  by  the  obligee  and 


JUNE  TERM,  1846.  451 

Commercial  Bank  v.  Reckless. 

mortgagee,  would  be  prima  facie  evidence  of  due  delivery. 
But  I  am  unable  to  perceive  that  the  possession  of  a  mortgage 
obtained  from  the  clerk's  office,  without  the  consent  of  the  mort- 
gagor, and  after  he  had  refused  to  deliver  the  bond  to  secure 
which  the  mortgage  was  drawn,  has  any  potency  whatever,  or 
is  entitled  to  any  consideration  as  evidence  of  a  due  delivery  of 
the  mortgage.  The  rule,  that  possession  is  presumptive  evi- 
dence of  delivery,  has  no  application  to  such  a  state  of  things. 
If  it  be  asked  why  J.  W.  Reckless  left  the  mortgage  so  long  at 
the  clerk's  office,  the  answer  is  plain.  He  had  possession  of  the 
bond,  the  principal  instrument;  and  had,  as  the  bill  states, 
and  as  A.  Reckless,  who  attended  to  this  business  for  J.  W.  Reck- 
less, testifies,  refused  to  deliver  it.  Could  it  be  imagined  that, 
under  such  circumstances,  the  bank,  or  their  cashier,  would 
send  to  the  clerk's  office  and  get  the  mortgage?  But  I  think  it 
may  be  asked,  with  much  more  significaucy,  why  the  bank 
pursued  the  course  they  did.  After  the  refusal  to  deliver  the 
bond,  a  long  time,  the  cashier  says  in  one  place,  three  months 
he  says  in  another  place,  elapsed  before  he  sent  to  the  clerk's 
office  for  the  mortgage.  The  bank  certainly  could  not  have 
expected  that  possession  of  the  mortgage  so  obtained,  after  the 
refusal  to  deliver  the  bond,  would  be  sufficient  evidence  of  the 
delivery  of  the  mortgage.  And  that  they  did  not  so  expect,  the 
bill  itself  shows. 

The  bill  says  nothing  of  their  getting  the  mortgage  from  the 
clerk's  office,  but  says  the  mortgage  was  returned  to  the  com- 
plainants; and  the  bill  is  framed  entirely  on  the  charge  that 
both  bond  and  mortgage  had  once  been  delivered,  absolutely, 
and  that  they  were  afterwards  obtained  from  the  bank  on  a 
pretence,  and  that  Reckless  afterwards  refused  to  deliver  up  the 
bond.  It  has  been  before  shown  that  the  case  made  by  the  bill 
is  not  sustained.  And  the  bank  themselves  seem  to  have  had 
little  confidence  in  the  ground  which,  at  a  very  late  period, 
they  assumed  in  the  bill.  They  prosecuted  the  notes,  obtained 
judgment,  and  caused  execution  to  be  issued  and  to  be  levied 
ou  these  very  premises.  It  was  said  in  argument,  on  the  part 
of  the  defendants,  and  not  denied,  that  it  happened  that  another 
execution,  issued  on  a  judgment  obtained  by  another  credi- 
tor of  J.  W.  Reckless,  was  recorded  an  hour  or  so  before  the 


152  CASES  IN  CHANCERY. 

Commercial  Bank  v.  Reckless. 

execution  in  favor  of  the  bank.  The  cause  was  argued  for  the 
defendants  by  counsel  in  behalf  of  a  judgment  creditor  other 
than  the  bank,  which  shows  that  his  execution  was  ahead  of 
that  of  the  bank.  It  was  not  till  after  this  state  of  things  oc- 
curred, that  the  bank  filed  their  bill  in  this  cause.  It  seems  to 
me  that  the  course  pursued  by  the  bank  betrays  an  evident 
want  of  confidence  in  the  idea  that  there  had  been  a  delivery 
of  the  bond  and  mortgage,  or  that  their  obtaining  the  mortgage 
from  the  clerk's  office  would  help  their  case.  And  this  want  of 
confidence  is  apparent  in  the  bill,  and  in  the  testimony  of  the 
cashier  and  Mr.  Bruen. 

The  fact  that  the  mortgage  was  recorded  cannot,  under  the 
circumstances  of  this  case,  aid  the  complainants.  To  consti- 
tute a  delivery,  even  of  a  deed,  a  single  instrument  having  no 
connection  with  any  other,  the  grantor  must  part,  not  only  with 
the  possession,  but  with  the  control  of  the  deed,  and  deprive 
himself  of  the  right  to  recall  it.  Dev.  Eq.  14;  C.  W.  Dud. 
Eq.  14. 

If  a  deed  be  left  by  the  grantor  for  registry,  the  mere  regis- 
tration is  not  equivalent  to  a  delivery.  To  make  the  leaving  a 
deed,  by  a  grantor,  with  the  clerk  for  registry,  a  good  delivery 
to  the  grantee,  it  must  be  left  by  the  grantor,  or  by  his  author- 
ity, for  the  grantee.  Rice's  Eq.  244. 

If,  then,  the  mortgage  was  left  with  the  clerk,  by  J.  W. 
Reckless,  or  by  his  authority,  for  the  express  purpose  of  being 
recorded,  which  is  denied  both  by  the  answer  and  by  the  testi- 
mony of  A.  Reckless,  who  handed  the  mortgage  to  the  clerk, 
yet  there  is  no  evidence  that  the  grantor  left  it,  or  authorized  it 
to  be  left  with  the  clerk  for  the  grantees,  and  that  the  grantor 
intended  to  part  with  the  control  of  it. 

Delivery  is  essential  to  a  deed ;  and  as  the  mortgage  was 
taken  from  the  clerk's  office  by  the  bank,  or  by  the  cashier  for 
them,  it  is  for  the  complainants  to  prove  that  it  was  left  with 
the  clerk  in  such  manner  and  with  such  directions  from  the 
grantor  as  to  amount  to  a  delivery  to  them,  or  for  their  benefit, 
and  authorize  them  to  take  it  from  the  clerk.  5  Mason's  C.  C. 
R.  60.  There  is  no  such  evidence. 

It  will  not  be  claimed  that  J.  W.  Reckless  could  not  have 
taken  the  mortgage  from  the  clerk's  office.  Were  any  such  di- 


JUNE  TERM,  1846.  453 


Commercial  Bank  v.  Reckless. 


rections  given  to  the  clerk,  when  the  mortgage  was  left  with 
him,  as  would  authorize  him  to  refuse  to  return  it  to  the  person 
who  gave  it  to  him,  or  to  J.  W.  Reckless?  Certainly  not.  And 
the  bond,  to  secure  which  the  mortgage  was  drawn,  was,  when 
the  mortgage  was  handed  to  the  clerk,  in  the  possession  of 
J.  W.  Reckless  or  his  agent,  and  delivery  of  the  bond  was 
afterwards  refused,  and  refused  before  the  bank  sent  to  the 
clerk's  office  for  the  mortgage.  And  in  a  case  like  this,  the  bank 
could  acquire  no  right  whatever  to  or  in  the  bond  and  mortgage 
until  an  absolute  and  final  delivery  of  them.  J.  W.  Reckless 
or  his  wife  might  object  at  the  last  moment  to  deliver  them 
either  with  or  without  a  reason ;  and  if  they  ever  were  willing 
that  the  bond  and  mortgage  as  drawn,  should  be  delivered  and 
the  bank  retain  the  notes,  they  were  at  liberty  to  change  their 
mind  at  any  time  before  the  completion  of  the  arrangement  by 
a  final  delivery  of  the  papers,  and  to  refuse  to  deliver  them. 
There  was  no  consideration  binding  them,  or  obligation  resting 
upon  them,  either  to  substitute  the  bond  and  mortgage  for  the 
notes,  or  to  give  them  as  additional  security  for  the  notes.  It 
was  a  matter,  resting  simply  in  their  will,  and  they  could 
change  that  will  at  the  last  moment.  I  do  not  see  that  it  is 
possible  that  the  registry  of  the  mortgage,  under  such  circum- 
stances, can  afford  the  least  aid  to  the  complainants. 

It  is  not  a  case  of  money  advanced  on  securities  claimed  to 
have  been  delivered.  The  bank  have  still  the  securities  on 
which  they  lent  their  money.  They  sustain  no  loss  by  not  be- 
ing able  to  avail  themselves  of  this  bond  and  mortgage;  they 
simply  fail  to  obtain  additional  or  substituted  securities  for  a  loan 
previously  made  on  securities  good,  or  thought  by  them  to  be 
good,  when  the  loan  was  made. 

It  is  unnecessary  for  me  to  make  any  observations  as  to  the 
admissibility  of  the  testimony  of  Mr.  M.  Bruen,  or  any  ani- 
madversions upon  it,  or  on  the  position  in  which  his  cross-ex- 
amination places  him.  Taking  his  testimony  as  it  is,  the  case, 
in  my  judgment,  is  clearly  with  the  defendants.  The  bill 
must  be  dismissed. 

Decree  accordingly. 

BEVERSED,  1  Hal.  Ch.  650. 


454  CASES  IN  CHANCERY. 


Mayne  v.  Baldwin. 


THE  STATE,  EX  EELATIONE  JOHN  MAYNE,  v.  HENKY 
BALDWIN. 

An  infant  daughter  ordered  to  be  delivered  to  her  father,  on  a  habeas  corpus 
applied  for  by  him,  though  he  had  verbally  committed  her  to  the  care  and 
custody  of  the  respondent  until  she  should  attain  the  age  of  twenty-one,  and 
the  respondent  had  adopted  her  accordingly. 


On  the  petition  of  John  Mayne,  the  relator,  in  his  right  as 
father,  the  Chancellor  allowed  a  writ  of  habeas  corpus  ad  sub- 
jiciendum,  directed  to  Henry  Baldwin,  commanding  him  to 
bring  before  the  Chancellor  Anna  Mayne,  an  infant  child  of  the 
relator ;  the  said  child  being,  as  alleged,  illegally  detained  and 
withheld  from  the  relator's  custody  by  the  said  Baldwin,  with 
the  cause  of  her  detention. 

Baldwin,  in  obedience  to  the  writ,  produced  the  child,  and 
the  return  to  the  writ  states  the  cause  of  detention  thus  :  "  On 
the  20th  July,  1844,  Anna  Mayne,  in  the  within  suit  named, 
was  committed  to  me  by  John  Mayne,  said  to  be  the  father  of 
the  said  Anna,  to  be  by  me  kept  and  adopted  until*  she  arrive  at 
full  age,  and  was  by  me  adopted  accordingly  by  the  request  and 
consent  of  said  Mayne." 

At  the  time  of  the  allowance  of  the  writ,  the  child  was  of 
the  age  of  five  years  and  seven  months,  and  it  appeared  that, 
about  sixteen  months  before,  the  child  had  been  taken  by  Bald- 
win, with  the  verbal  consent  of  the  relator,  to  be  adopted  by 
Baldwin  and  brought  up  as  his  own  child  until  she  should  be 
of  full  age. 

No  deed  or  writing  of  any  kind  was  ever  executed  by  the 
relator  or  Baldwin,  in  relation  to  the  custody  or  services  of  the 
child,  or  the  terms  on  which  Baldwin  was  to  keep  and  bring 
her  up. 

The  relator  had  demanded  of  Baldwin  the  custody  of  the 
child  and  was  refused  it. 

/.  P.  Bradley,  for  the  relator.  He  cited  8  Paige  47.  678  ; 
25  Wend.  64  ;  3  Hill  399 ;  2  Story's  Eg.,  §  1343 ;  2  Swanst. 
553,557,559;  Vaughan  177,180;  Elm.  Dig.  598;  1  Bam. 
and  Aid.  723 ;  1  Harr.  419. 


JUNE  TERM,  184G.  4r>:> 

Mayne  v.  Baldwin. 

S.  R.  Grover  and  L.  C.  Grover,  for  the  respondent.  They 
p-ted  2  South.  445;  10  Johns.  Rep.  605;  4  Cowen  728;  3 
£urr.  1437  ;  8  Jo/ins.  Rep.  253  ;  4  Da&  347. 


THE  CHANCELLOR.  A  father  is  entitled  to  the  custody  of 
his  minor  children,  as  guardian  by  nature,  and  guardian  for 
nurture.  3  P.  Wms.  154  ;  5  East  221.  Such  guardianship  is 
not  assignable.  2  Swanst.  567,  571.  The  care  and  custody  of 
minor  children  is  a  personal  trust  in  the  father,  and  he  has  no 
general  power  to  dispose  of  them  to  another.  3  HiWs  Rep. 
410,411. 

The  verbal  agreement  set  up  in  this  case  is  void  as  a  contract 
for  the  apprenticeship  of  the  child,  by  our  act  respecting  ap- 
prentices and  servants. 

From  these  principles  it  follows  that  the  respondent  has  no 
right  to  detain  this  child  from  the  custody  of  its  father. 

In  this  case,  the  child  is  of  such  tender  years  that  the  father 
could  properly  apply  for  the  writ  of  habeas  corpus  in  his  own 
right,  without  the  privity  of  the  child;  and  it  is  a  case  in  which, 
for  want  of  discretion  in  the  child,  it  is  proper  that,  instead  of 
merely  delivering  the  child  from  improper  restraint,  an  order 
should  be  made  for  the  delivery  of  the  child  to  the  father.  8 
Hill  399. 

Order  accordingly. 

CITED  in  State  v.  Baird,  3  C.  E.  Or.  199. 


PREROGATIVE  COURT. 


JUNE  TERM,  1846. 


IN  THE  MATTER  OF  THE  PROBATE  OF  A  PARCHMENT 
WRITING,  PURPORTING  TO  BE  THE  LAST  WILL  AND 
TESTAMENT  OF  PAMELA  JOLLY,  DECEASED. 

A  writing,  purporting  to  be  executed  by  P.  J.,  by  a  mark,  which  writing, 
vith  the  names  of  all  the  persons  whose  names  were  subscribed  as  witnesses, 
soil  the  name  of  P.  J.,  were  in  the  handwriting  of  one  of  the  persons  whose 
i  ame  was  subscribed  as  a  witness,  not  admitted  to  probate  on  proof  that  the 
signature  of  the  person  who  wrote  the  will  and  signatures  was  her  hand- 
writing, and  that  she  was  dead. 


On  the  7th  July,  1843,  a  parchment  writing,  bearing  date  and 
purporting  to  have  been  executed  May  20th,  1824,  purporting 
to  be  the  last  will  and  testament  of  Pamela  Jolly,  deceased, 
which  had  been  exhibited  for  probate  in  the  surrogate's  office  of 
Burlington,  and  against  the  probate  of  which  a  caveat  had  been 
file*!,  was  declared  by  the  Orphans'  Court  of  that  county  to  be 
sufficiently  proved,  and  the  said  court  accordingly  decreed  that 
letters  testamentary  issue  thereupon,  directed  to  the  executrix 
therein  named.  From  this  decree  an  appeal  was  taken  to  this 
court. 

It  appeared  from  the  testimony,  and  from  inspection,  that  the 
writing  offered  as  a  will,  the  body  of  it  and  the  names  purport- 
ing to  be  the  names  of  witnesses  to  it  and  the  name  "  Pamela 
Jolly  "  are  all  in  one  handwriting,  and  that  not  the  writing  of 
Pamela  Jolly. 

456 


JUNE  TERM,  1846.  457 

The  Will  of  Pamela  Jolly. 
The  writing  offered   for  probate  purports  to   have  been  exe- 

her 

cuted   thus,   "  Pamela    X   Jolly,"  and    purports   to  have   been 

mark 

pubscribed  by  John  Oliver,  Joshua  Carman,  and  Elizabeth  Car- 
man, as  witnesses. 

It  appeared  by  the  testimony,  that  John  Oliver  died  previous 
to  May  llth,  1824,  his  will  having  been  proved  on  that  day  ; 
that  the  name  "  John  Oliver,"  subscribed  as  a  witness  to  the 
writing  offered  for  probate,  was  not  his  handwriting;  that  the 
name  "  Joshua  Carman,"  subscribed  as  a  witness  to  said  writing, 
was  not  his  handwriting;  and  that  the  whole  of  the  writing, 
signatures  and  all,  was  in  the  handwriting  of  Elizabeth  Carman, 
including  her  name  as  a  witness  to  the  said  writing.  Joshua 
Carman  died  A.  D.  1838,  and  Elizabeth  Carman  died  A.  D. 
1837. 

A  letter,  claimed  to  have  been  written  by  Pamela  Jolly,  dated 
A,  D.  1831,  referring  to  a  will  of  Pamela  Jolly  theretofore  made, 
awl  saying  that  such  will  theretofore  made  was  written  by  John 
Oliver,  was  admitted  in  evidence  in  the  Orphans'  Court;  but  it 
appeared  in  evidence  that  the  writing  offered  for  probate  was 
not  written  by  John  Oliver.  No  proof  was  adduced  to  show 
where  the  writing  was  found. 

H.  W.  Green,  for  the  appellant. 

R.  D.  Spencer  and  P.  D.  Vroom,  for  the  respondent.  They 
cited  Phil.  Evid.  473,  501  ;  1  Stark.  Evid.  341 ;  5  Hold.  573  ; 
1  South.  450;.  4  Halst.  329. 

THE  CHANCELLOR.  If  the  letter  admitted  in  evidence  by 
the  Orphans'  Court  be  genuine,  it  proves  that  Pamela  Jolly  htfd 
made  a  will  before  1831,  the  date  of  the  letter.  But  it  is  clear, 
from  the  testimony,  that  the  writing  now  offered  as  a  will,  is 
not  the  will  referred  to  in  that  letter.  The  letter  says  that  the 
will  referred  to  in  it  was  written  by  John  Oliver.  The  testi- 
mony shows  that  the  writing  offered  as  a  will  was  not  written 
by  John  Oliver.  It  is  clear,  also,  from  the  testimony  and  from 
inspection,  that  the  writing  offered  as  a  will,  the  body  of  it,  and 
the  names  purporting  to  be  the  names  of  witnesses  to  it,  are 

VOL.  i.  2p 


458  PREROGATIVE  COURT. 

The  Will  of  Pamela  Jolly. 

all  in  one  handwriting;  and  that  not  the  writing  of  Pamela 
Jolly.  The  writing,  then,,  cannot  be  what  it  purports  on  its 
face  to  be — a  will  signed  or  executed  by  mark,  in  the  presence 
of  the  witnesses  whose  names  appear  to  it  as  witnesses.  If  it 
can  be  held  to  be  a  will,  it  must  be  on  some  ground  different 
from  what  the  face  of  the  writing  purports. 

The  writing  bears  date  May  20th,  1824.  The  letter  referring 
to  a  will  written  by  John  Oliver,  is  dated  in  1831.  It  was 
suggested  by  counsel  for  the  probate,  that  the  writing  offered 
for  probate  was  not  made  till  after  1831,  but  that  it  might  be  a 
will  notwithstanding;  that,  though  the  body  of  the  writing  and 
the  signatures  are  in  one  handwriting,  yet  if  there  is  satisfactory 
testimony  that  Pamela  Jolly  signed  it  after  1831,  it  would  be  a 
good  will  of  personal  property.  Is  there  such  evidence?  The 
will  purports  to  be  executed  by  a  mark.  A  writing  purporting 
to  be  executed  by  a  mark,  without  any  proof  where  it  was  found, 
or  any  proof  of  any  distinctive  character  in  the  mark,  and  with- 
out a  witness  of  its  execution,  or  what  is  equivalent  to  it,  cannot 
be  received  as  a  will. 

But  it  is  said  that  the  body  of  the  writing,  and  the  signatures 
to  it,  are  all  in  the  handwriting  of  Elizabeth  Carman  ;  that, 
therefore,  the  name  of  Elizabeth  Carman,  appearing  as  the 
name  of  a  witness,  is  a  genuine  signature ;  and  that  she,  being 
dead,  proof  of  her  handwriting  proves  the  execution  of  the  will. 
It  may  be  that,  after  1831,  Pamela  Jolly  may  have  proposed 
to  make  a  new  will,  and  she  and  Elizabeth  Carman,  or  she 
alone,  may  have  supposed  it  would  be  sufficient  to  have  a  copy 
of  the  old  will,  date,  and  names  made,  introducing  any  altera- 
tions she  might  wish,  and  to  execute  it.  And  if  she  did  so  exe- 
cute it,  and  the  court  have  the  legal  evidence  of  its  execution, 
it  would  be  a  good  will  of  personal  property.  But  there  is  a 
link  wanting  in  the  testimony.  No  proof  of  execution  is  to  be 
derived  from  the  name  of  "  Pamela  Jolly  "  in  this  case. 

If  Elizabeth  Carman  were  in  life,  and  had  been  produced  as 
a  witness,  and  had  sworu  that  she  saw  Pamela  Jolly  execute 
the  writing  by  making  her  mark,  and  that  she  subscribed  her 
name  as  a  witness  to  such  execution,  it  would  have  been  suffi- 
cient proof;  or,  if  there  had  been  added  to  the  writing,  as  it 


JUNE  TERM,  1846.  459 

The  Will  of  Pamela' Jollj. 

now  stands,  a  new  attestation  clause,  showing  that  it  was  execu- 
ted in  the  presence  of  Elizabeth  Carman,  and  her  name,  proved 
to  be  genuine,  was  subscribed  thereto;  proof  of  that  signature, 
she  being  dead,  might  have  been  sufficient. 

But  as  the  writing  now  stands,  and  under  the  facts  proved, 
and  on  the  very  supposition  that  brings  us  to  the  present  point 
of  inquiry,  there  is  nothing  in  the  mere  signature  of  Elizabeth 
Carman,  as  it  now  appears  on  the  writing,  which  can  amount  to 
an  affirmation  or  supposed  affirmation  by  Elizabeth  Carman,  or 
to  any  intendment  in  law,  that  she  saw  Pamela  Jolly  execute 
this  writing. 

For  aught  that  appears,  or  that  can  properly  be  inferred  from 
the  face  of  the  paper  and  the  proofs,  Elizabeth  Carman  may 
simply  have  made  a  copy  of  the  old  will,  including  the  signa- 
tures, (this  is  the  supposition  of  the  counsel  for  the  probate,)  and 
handed  it  to  Pamela  Jolly,  and  she  may  have  put  her  mark  to 
it  alone  in  her  chamber,  or  some  one  else  may  have  put  her  mark 
to  it.  But  if  she  did  it  herself,  it  must  be  proved  she  did  it. 
We  are  not  at  liberty  to  carry  the  supposition  so  far  as  to  make 
Elizabeth  Carman's  name  say  what  it  is  admitted  neither  of  the 
other  names  subscribed  as  witnesses  says,  and  what  the  mere 
appearance  of  her  name  with  the  other  names  appearing  as  the 
names  of  witnesses,  cannot  by  any  iutendment,  under  the  circum- 
stances, make  her  say. 

The  proof  adduced  for  the  probate  was  insufficient,  and  the 
decree  of  the  Orphans'  Court  will  be  reversed. 


CASES  IN   CHANCERY. 


SEPTEMBER  TERM,  1846. 


JOHN  I.  PLUME  v.  GEORGE  D.  SMALL. 

1.  The  conditions  of  sale  for  the  sale  of  lands  and  buildings  provided  for 
•lie  sale  of  the  buildings  separately  :  and  one  of  the  conditions  of  the  sale  was 
d«  follows  :    "  The  buildings  will   be  sold,  to  be  removed,  within  thirty  days 
irom  this  date,  from  the  premises."     Held,  that  the  purchaser  of  a  building, 
who  also  purchased  the  lot  on  which  it  stood,  was  not  bound  to  remove  the 
building. 

2.  The  court  cannot  act  on  a  distinct  ground  for  relief  made  by  the  proofs, 
if  it  be  not  set  up  in  the  bill. 

The  facts  of  this  case  sufficiently  appear  in  the  opinion  of  the 
court. 

A.  Oifford  and  Wm.  Hoisted^  for  complainant. 
A.  C.  M.  Pennington,  for  the  defendant. 

THE  CHANCELLOR.  George  D.  Small,  being  the  owner  of 
a  piece  of  land  on  the  corner  of  Broad  and  Fulton  streets,  in 
Newark,  of  106  feet  on  Broad  and  300  feet  on  Fulton  street, 
an  agreement  was  entered  into  between  certain  persons,  of 
whom  the  complainant  was  one,  and  Small,  by  which  the  prop- 
erty was  to  be  taken  at  a  valuation  of  $28,OQO,  in  shares  of 
$1000,  or  half  shares  of  $500  each,  Small  retaining  an  inter- 
est therein  to  the  amount  of  five  shares;  the  property  to  be 
advertised  and  sold  at  such  time,  in  such  manner,  and  on  such 

460 


SEPTEMBER  TERM,  1846.  4tii 


Plume  r.  Small. 


terms,  as  the  owners  of  a  majority  of  the  shares  should  direct  ; 
the  deeds  to  be  given  by  Small  and  wife  to  the  purchasers  at 
such  sale ;  ten  per  cent,  to  be  paid  to  Small  at  the  signing  of 
the  agreement,  and  twenty  per  cent,  on  the  delivery  of  the 
deeds ;  and  the  residue  out  of  the  cash  and  securities  received 
from  the  purchasers.  All  the  shares  being  subscribed  for  except 
the  five  retained  by  Small,  he  also  subscribed  the  agreement. 
The  manner  and  conditions  of  sale  were  fixed,  and  the  sale 
advertised  for  May  21st,  1836.  The  property  was  divided  into 
building  lots,  and  the  buildings  on  the  property  were  to  be  sold 
separately,  the  third  article  of  the  conditions  of  sale  being  as 
follows:  "The  buildings  will  be  sold,  to  be  removed  within 
thirty  days  from  this  date,  from  the  premises."  The  fifth  arti- 
cle of  the  conditions  of  sale  was  as  follows  :  "  If  any  purchaser 
shall  refuse  to  take  the  property  bid  off  by  him,  it  shall  imme- 
diately be  put  up  and  resold,  and  if  it  shall  sell  for  more,  he 
shall  not  receive  the  benefit  thereof;  but  if  it  sell  for  less,  he 
shall  make  good  the  deficiency."  The  seventh  article  provided 
that  the  deeds  would  be  ready  for  delivery  by  Ambrose  Wil- 
liams, (one  of  a  committee  of  the  associates,)  at  an  office  named 
in  the  article,  on  the  Saturday  after  the  sale.  The  eighth  ar- 
ticle provided  that  each  purchaser,  before  he  left  the  place  of 
sale,  should  subscribe  the  articles  of  sale.  The  buildings  on 
the  property  were  a  building  called  Cadet  Hall,  on  the  corner, 
the  main  house  on  Broad  street,  a  building  on  the  south  of  the 
main  house,  and  a  barn  on  Fulton  street.  The  laud  was  di- 
vided into  eleven  lots;  the  first  seven  lots,  numbered  from  1  to 
7,  inclusive,  were  on  Fulton  street,  No.  8  was  the  corner  lot, 
Nos.  9,  10  and  11  were  the  next  adjoining  lots  in  order  on 
Broad  street ;  the  main  house  stood  on  lot  10  and  part  of  lot  9, 
and  the  buildings  south  of  the  main  house  stood  on  lot  No.  11. 
On  the  day  fixed  for  the  sale,  the  conditions  of  sale  were  first 
read,  and  each  of  the  eleven  lots  was  cried  and  struck  off  sepa- 
rately, and  each  of  the  buildings,  designated  as  before  men- 
tioned, was  cried  and  struck  off  separately.  Lot  No.  11,  of 
thirty-one  feet  front,  was  struck  off  to  Small  at  $179  per  front 
foot ;  lot  No.  10,  of  twenty-five  feet  front,  next  adjoining  it  on 
the  north,  was  struck  off  to  Ambrose  Williams,  one  of  the  sub- 
scribers, and  one  of  a  committee  of  three  appointed  by  the  aa- 


462  CASES  IN  CHANCERY. 

Plume  v.  Small. 

sociates  to  arrange  for  the  sale  and  fix  the  conditions,  at  $177 
per  front  foot;  lot  No.  9,  next  adjoining  on  the  north,  also  of 
twenty-five  feet  front,  to  J.  W.  Condit  &  Co.  J.  W.  Condit 
(for  J.  W.  Condit  &  Co.)  was  one  of  the  subscribers,  and  one 
of  said  committee.  The  barn  was  struck  off  to  G.  D.  Small ; 
the  main  house  to  A.  Gifford.  The  buildings  south  of  the 
main  house,  standing  on  the  lot  bought  by  Small,  were  struck 
off  to  Joel  W.  Condit  &  Co.,  Condit  bidding  for  them  and 
signing  the  bid  in  that  name,  on  a  private  understanding  be- 
tween him  and  Small,  that  he  was  to  buy  them  for  Small.  Lot 
No.  11  had  been  previously  struck  off  to  Small.  The  persons 
to  whom  the  several  lots  and  buildings  were  struck  off,  all  sub- 
scribed the  articles  and  acknowledged  their  purchases.  J.  \V. 
Condit  &  Co.  and  A.  Williams  afterwards  refused  to  take  the 
lots  struck  off  to  them  respectively,  alleging  that  they  bid  in 
the  lots  for  the  associates  ;  and  these  lots,  9  and  10,  were  after- 
wards advertised  to  be  sold  on  the  9th  July,  1836.  On  that 
day  they  were  severally  exposed  to  sale  at  auction.  The  build- 
ings were  yet  standing  on  these  lots,  and  also  that  on  lot  No. 
11,  and  the  barn  was  yet  on  the  premises.  The  conditions  of 
the  second  sale  were  headed,  "Articles  of  sale  of  lots,  G.  D. 
Small  property,  to  close  a  concern,  July  9th,  1836." 

The  articles  were  as  follows  :  "1st.  The  highest  bidder  to  ba 
the  purchaser.  2d.  The  terms  of  payment  are  15  per  cent,  in 
6  months,  15  per  cent,  in  12  months,  with  interest,  and  the  bal- 
ance by  bond  in  5  years,  with  interest,  secured  by  mortgage  on 
the  purchase.  Deeds  to  bear  date  July  9th,  1836,  from  which 
time  interest  is  to  be  paid.  The  building  to  be  removed  by  the 
first  day  of  August  next." 

The  building  had  been  bought  by  A.  Gifford  at  the  first  sale, 
and  had  not  yet  been  removed.  At  this  sale  the  complainant 
bought  these  two  several  lots,  at  separate  biddings — lot  No.  9 
at  $  per  front  foot,  and  lot  No.  10  at  $  per  front  foot — 
and  gave  his  notes  and  bond  and  mortgage  according  to  the 
conditions  of  sale,  and  received  a  deed.  Shortly  before  the  bill 
was  filed,  Small  brought  his  action  against  the  complainant  on 
his  said  bond. 

On  the  15th  June,  1838,  the  complainant  exhibited  his  bill, 
charging,  as  grounds  of  relief,  that  he  gave  his  notes  and  bond 


SEPTEMBER  TERM,  1846.  463 

PiuuM  v.  Small. 

and  mortgage,  and  received  his  deed,  under  a  presumption  of 
the  fairness  of  the  transaction,  and  that  the  conditions  of  sale 
would  be  complied  with  by  all  the  purchasers,  but  that  after- 
wards, and  after  his  notes  were  paid,  he  has  been  informed  and 
believes  that  there  were  no  other  real  bidders  for  the  property 
except  himself,  and  that  any  bid  in  opposition  to  him  was  not 
for  the  person  bidding,  but  in  behalf  of  Small,  to  inflate  the 
price,  and  that  the  price  at  which  the  lots  were  struck  off  to 
him  was  far  beyond  their  value.  That  the  whole  of  the  said 
Small  property  was  situated  in  a  well-settled  and  respectable 
part  of  Newark ;  and  that  for  many  years  a  public  house  has 
been  kept  thereon  ;  and  that  there  were  two  buildings  thereon 
which  had  been,  from  time  to  time,  occupied  as  theatres  and 
for  public  shows,  and  that  on  vacant  lots  thereon,  circus  riding 
and  other  entertainments  were  had  ;  and  that  the  buildings 
were  generally  old.  That  in  order  to  free  the  neighborhood 
from  this  demoralizing  influence,  the  subscribers  to  the  said  ar- 
ticles of  agreement  had  entered  into  the  same,  and  not  for  any 
profit  to  be  expected  ;  and  that  in  making  such  arrangement  it 
was  their  design,  and  was  so  represented  and  understood  by 
them  and  by  Small,  that  all  the  buildings  were  to  be  removed 
from  the  premises,  without  which  no  reasonable  inducement 
could  be  given  to  any  person  to  purchase  any  of  the  lots;  and 
that  it  was  with  that  intent  that,  among  the  conditions  of  said 
articles,  it  was  made  imperative  on  the  purchaser  of  each  lot  to 
remove  the  buildings  thereon.  That  the  buildings  on  the  lot 
occupied  by  the  complainant  were  removed  therefrom,  but  that 
on  the  adjoining  lot  on  Broad  street,  to  the  south  of  those  bid 
upon  by  the  complainant,  a  part  of  the  building  still  remains, 
which  had  been  occupied  as  a  bar-room,  and  a  long  room  in 
the  rear  thereof,  in  which  theatrical  and  other  exhibitions  had 
been  made;  and  that  on  the  lot  No.  7,  in  Fulton  street,  an  old 
barn  also  remained.  That  Small  had  resided  on  the  premises, 
and  still  continued  to  occupy  them  for  some  time  thereafter  as 
a  tavern  stand  and  for  the  purposes  aforesaid  ;  and  afterwards, 
for  a  short  period,  leased  out  the  lot  so  bought  by  him  and  the 
tenement  thereon  as  a  tavern  stand  and  for  the  purposes  afore- 
said ;  and  that  the  buildings  thereon  still  continue  to  be  main- 
laired  thereon,  contrary  to  the  design  and  understanding  of  all 


4G4  CASES  IN  CHANCERY. 

Plume  v.  Small. 

the  parties  interested  in  the  purchase,  and  the  conditions  of  sale 
under  which  the  same  was  purchased  ;  by  reason  whereof  the 
property  bid  off  by  the  complainant  has  been  greatly  injured  in 
value;  and  that  Small  still  continues  to  own  and  exercise  con- 
trol over  the  said  lots  so  bought  by  him.  That  since  the  pay- 
ment of  his  note  for  part  of  said  consideration  money,  the  co-m- 
plainant  has  been  informed  of  the  fact  that  Small  was  the  true 
bidder  for  the  said  buildings,  in  the  name  of  J.  W.  Condit  &  Co., 
and  has  also  been  informed  that  all  the  bidders  against  him 
were  bidders  iu  behalf  of  Small.  That  Small  has  brought  suit 
on  the  bond  given  by  the  complainant.  The  bill  prays  an  in- 
junction to  restrain  the  suit,  and  that  the  bond  be  delivered  up 
to  be  canceled ;  and  that  Small  may  account  for  and  pay  back 
to  the  complainant  all  moneys  received  for  the  lots  bid  off  by 
the  complainant,  and  that  the  deed  for  the  same  be  decreed 
void,  or  that  Small  be  decreed  to  remove  the  buildings. 

An  injunction  was  issued,  according  to  the  prayer  of  the 
bill. 

The  answer  denies  that  there  was  any  underbidding  whatever 
at  the  second  sale,  and  there  is  no  proof  of  it.  It  also  denies 
that  there  is  anything  in  the  conditions  of  sale,  even  if  the  con- 
ditions of  the  first  sale  can  be  considered  conditions  of  the 
second  also,  which  requires  a  person  who  bought  a  lot  and  also 
the  building  standing  on  it,  to  remove  the  building  from  it ; 
and  I  am  of  this  opinion. 

Another  point  is  made  by  the  proofs  in  the  case,  and  the  ar- 
gument of  counsel  on  the  part  of  the  complainant :  it  is  that 
Small  induced  the  first  subscriber  for  a  share  to  put  down  his 
name  by  telling  him  that  if  he  would  subscribe  it  would  go, 
and  that  he  should  sustain  no  loss.  Whether  this  would  avail 
a  purchaser  at  the  sale  made  by  the  associates,  the  purchaser 
being  one  of  the  associates,  I  am  not  called  upon  to  say,  for 
the  reason  that  no  such  ground  is  taken  by  the  bill. 

A  complainant  cannot  be  allowed  to  make  one  case  by  his 
bill  and  another  by  his  proofs. 

Let  the  injunction  be  dissolved,  and  the  bill  dismissed. 

AFFIRMED,  1  Hal.  Ch.  650. 


SEPTEMBER  TERM,  1846.  465 


Bobbins  v.  Abrahams. 


JOHN    BOBBINS   v.  GEORGE   D.  ABRAHAMS   AND   HIS   WIFE, 
AND  JAMES  BURROWS,  TRUSTEE  FOR  THE  WIFE. 

1.  A  husband  bought  real  estate,  and  directed  the  deed  therefor  to  be  made 
to  another,  in  trust  for  his  wife  and  her  heirs,  so  that  the  same  should  not  be 
subject  to  his  control  or  debts;  and  on  the  further  trust  to  convey  the  same 
to  such  person  or  persons,  for  such  uses,  and  subject  to  such  provisions,  limi- 
tations, and  agreements  us  the  wife,  by  writing  under  seal,  or  by  will,  should 
give,  limit,  or  appoint.     The  trustee  and  the  wife,  afterwards,  executed  a 
mortgage  of  the  lands  to  secure  a  debt  due  from  the  husband,  and  the  mort- 
gage was  duly  acknowledged  by  the  wife.     Held,  that  the  mortgage  was  good. 

2.  The  deposition  of  the  husband,  offered  on  the  part  of  the  defendant,  waa 
held  to  be  inadmissible. 


George  D.  Abrahams,  at  different  periods  after  his  marriage 
with  Phebe,  his  wife,  bought  three  several  tracts  of  laud,  and 
the  deeds  therefor  were,  by  his  directions,  made  to  James  Bur- 
rows, conveying  the  lands  to  the  said  Burrows  in  trust  for  the 
use  and  benefit  of  Phebe  Abrahams,  wife  of  the  said  George 
D.  Abrahams,  and  her  right  heirs  forever,  so  that  the  same 
should  not  be,  in  any  manner,  subject  or  liable  to  the  control, 
debts,  or  liabilities  of  her  said  husband  or  any  future  husband  ; 
and  on  the  further  trust  to  convey  the  same  to  the  use  of  such 
person  or  persons,  for  such  uses  and  estates,  and  subject  to  such 
provisos,  limitations  and  agreements  as  the  said  Phebe,  notwith- 
standing her  said  coverture,  or  any  future  coverture,  by  any 
deed  or  deeds,  writing  or  writings  to  be  by  her  sealed  and  deliv- 
ered, or  by  her  will  duly  executed,  should  give,  limit,  and  ap- 
point. One  of  the  said  deeds  was  executed  in  May,  1830; 
another,  in  April,  1831  ;  and  the  other  in  May,  1831. 

On  the  1st  of  May,  1839,  George  D.  Abrahams  executed  to 
Isaac  Ivins  a  bond  of  that  date,  conditioned  for  the  payment  of 
two  thousand  dollars,  with  interest,  in  one  year;  and  on  the 
same  day,  James  Burrows,  as  trustee  of  Phebe  Abrahams,  and 
the  said  Phebe  Abrahams,  executed  a  mortgage  of  the  eaid  lands 
to  Ivins,  bearing  even  date  with  the  said  bond,  securing  the 
amount  of  the  said  bond. 


466  CASES  IN  CHANCERY. 

Bobbins  v.  Abrahams. 

On  the  1st  of  April,  1844,  the  said  bond  and  mortgage  were 
assigned  by  Ivins  to  John  Robbins,  the  complainant.  The  bill 
was  filed  for  the  foreclosure  of  the  said  mortgage. 

The  mortgage  was  acknowledged  by  Mrs.  Abrahams,  in  the 
usual  form  of  acknowledgment  by  married  women.  There  was 
a  dwelling-house.  011  one  of  the  tracts,  which  was  occupied  by 
Abrahams  and  his  family,  and  Abrahams  also  had  the  possession 
of  the  other  lots. 

Answers  were  put  in  by  Burrows  and  Phebe  Abrahams,  she 
answering  separately  from  her  husband,  by  leave  of  the  court 
for  that  purpose  first  obtained  ;  (see  ante  p.  16  ;)  and  testimony 
was  taken.  The  defendant,  George  D.  Abrahams,  was  sworn 
oil  the  part  of  the  defendants,  and  his  testimony  was  objected  to 
as  incompetent. 

H.  W.  Green,  for  the  complainant.  He  cited  Gresley's  Eq. 
Evid.  245 ;  2  Stark.  Evid.  400  •  1  Burr.  424;  4  Term  Rep.  678  j 
7  John.  Ch.  Rep.  34,  229,  238;  1  Green's  Ch.  131  ;  2  Vesty 
560 ;  5  John.  Ch.  480  ;  14  Vesey  542  ;  5  Ibid.  445  ;  6  Ibid. 
376 ;  4  Kent1 8  Com.  344,  345 ;  1  Sugden  on  Powers  508 ;  3 
John.  Chan.  134,  144;  15  Vesey  596. 

P.  D.  Vroom,  for  defendants.  He  cited  3  John.  Ch.  550, 
J13;  1  Fes.,  Jr.,  189,  and  note;  3  Dessaus.  417;  2  Ves.,  Jr., 
497,  498  ;  2  Ves.,  Sr.,  663. 

THE  CHANCELLOR.  The  principal  grounds  of  defence  are, 
1st.  That,  under  the  terms  of  the  trust  in  the  several  deeds  to 
Burrows,  the  wife  could  not,  by  any  mode  of  direction  or  ap- 
pointment, authorize  the  trustee  to  execute  a  mortgage  of  the 
lands  to  secure  the  payment  of  a  debt  of  the  husband.  2d. 
That,  if  she  could  authorize  such  a  conveyance  by  the  mode  of 
direction  or  appointment  specified  in  the  deeds,  her  joining  in 
the  execution  of  the  mortgage,  without  a  previous  deed  of  direc- 
tion or  appointment,  is  not  sufficient. 

I  cannot  regard  this  case  as  standing  on  the  same  ground  as 
an  ante-nuptial  settlement,  or  as  a  conveyance  by  one  person 
in  trust  for  the  wife  of  another.  If  I  could,  I  should  feel  bound 
to  meet  the  inquiry,  whether  some  of  the  doctrines  which  seem 


SEPTEMBER  TERM,  1846.  467 

Van  Scoten  v.  Albright. 

to  have  been  held  elsewhere,  as  to  the  extent  of  the  wife's 
right  of  alienation  or  appointment,  and  the  mode  of  appoint- 
ment, have  ever  been  sanctioned  in  this  state.  But  in  the  case 
before  me,  I  am  willing  to  take  the  broadest  grounds  that  have 
been  taken  in  England  and  in  New  York,  sustaining  convey- 
ances by  a  wife,  or  by  a  trustee  with  her  consent.  I  do  not  de- 
sire to  be  understood  as  now  assenting  that  a  husband  can,  at 
this  day,  in  New  Jersey,  purchase  property  and  direct  a  convey- 
ance thereof  to  be  made  to  a  trustee  for  the  use  of  his  wife,  and 
by  that  means  placing  it  beyond  the  reach  of  subsequent  creditors. 
The  deposition  of  George  D.  Abrahams,  the  husband,  was 
objected  to.  I  think  it  was  incompetent. 

Decree  for  the  complainant. 


GEORGE  VAN  SCOTEN  v.  JOHN  ALBRIGHT. 

By  agreement  under  seal,  J.  A.  covenanted  to  sell  to  G.  V.  a  tract  of  land, 
and  to  make  to  G.  V.  a  warrantee  deed  therefor,  possession  to  be  given  on  the 
1st  of  April  then  next,  and  G.  V.,  for  and  in  consideration  of  the  said  tract 
of  land,  covenanted  to  pay  J.  A.  $1850 — $200  on  the  first  of  April  then  next, 
$400  in  one  year  thereafter,  and  the  balance  in  installments  of  $200  a  year, 
all  with  interest  until  all  should  be  paid.  Un  the  day  fixed  for  the  first  pay- 
ment, G.  V.  tendered  the  $200,  and  demanded  the  deed  and  possession.  J. 
A.  refused  to  give  the  deed,  unless  G.  V.  would  execute  to  him  a  mortgage  on 
the  premises,  to  secure  the  subsequent  payments.  On  bill  filed  by  G.  V.  for 
the  specific  performance  of  the  agreement,  the  relief  sought  was  denied. 


The  facts  of  this  case  sufficiently  appear  in  the  opinion  de- 
livered. 

S.  G.  Polls  and  W.  Hakted,  for  the  complainant.  They  cited 
3  Law  Lib,  12  ;  Saxton  393  ;  3  Wash.  C.  C.  Rep.  149  ;  2  Wend. 
501  ;  4  Hill  107;  3  Johns.  Rep.  508;  Stoiy's  E<j.  PI.  286,  note; 
10  Peters'  Rep.  178;  Gresley's  Eq.  EM.  205;  2  Vesey  196. 


468  CASES  IN  CHANCERY. 

Van  Scoten  v.  Albright. 

H.  W.  Green,  for  the  defendant.  He  cited  1  Story's  Eq.,  §§ 
161,  162,  note  I  •  Saxton  52,  55 ;  8  Wheat.  174  ;  1  Vern.  267  ; 
2  Ves.  and  Beam  306 ;  15  Ves.  329 ;  6  Ibid.  759  ;  1  Johns. 
Ch.  Rep.  308  ;  4  Wheat.  255  ;  1  Mad.  Rep.  196  ;  1  Sugden  on 
Vendors  171,  204  ;  2  Ibid.  57 ;  1  Alh.  572 ;  3  Ibid.  272 ;  6 
JbAns.  Chan.  117,  222;  tefon  281. 

THE  CHANCELLOR.  By  an  article  of  agreement  under  seal, 
dated  September  25th,  1843,  John  Albright  covenants  to  sell  to 
George  Van  Scoten,  "  and  by  these  presents  does  sell,"  all  that 
tract  of  laud,  situate,  &c.,  containing  about  one  hundred  and 
fifty-six  acres ;  and  to  make  to  Van  Scoten,  on  or  before  the  1st 
of  April  thereafter,  a  good  and  sufficient  warrantee  deed,  in  fee 
simple,  free  from  encumbrances,  possession  to  be  given  on  the 
said  1st  day  of  April.  And  Van  Scoten,  "for  and  in  consider- 
ation of  the  above  tract  of  land,"  covenants  and  agrees  to  pay 
Albright  $1850  in  cash,  and  to  give  him  possession  of  a  certain 
pleasure  wagon  valued  at  $80,  "  the  payments  to  be  made  as 
follows  :  $200  on  or  before  the  first  day  of  April  then  next  en- 
suing; $400  on  the  first  of  April,  1845;  the  balance  of  the 
purchase  money  to  be  paid  in  installments  of  $200  a  year  for 
each  and  every  year,  all  with  interest,  until  all  is  paid;"  and  for 
the  performance  of  the  agreement  the  parties  bound  themselves 
each  to  the  other  in  the  penal  sum  of  $500.  The  wagon  was 
delivered  at  the  execution  of  the  agreement.  On  the  first  of 
April  thereafter,  Van  Scoteu  tendered  the  $200,  which,  by  the 
agreement,  was  to  be  paid  on  that  day,  and  demanded  the  deed 
and  possession,  and  the  bill  says  he  at  the  same  time  offered  to 
give  his  promissory  notes  to  Albright,  for  the  payment  of  the 
several  sums  of  money,  the  residue  of  the  consideration,  in  the 
sums,  and  payable  at  the  times,  respectively,  mentioned  in  the 
agreement;  or  to  leave  the  agreement  in  full  force  for  the  pay- 
ment of  the  said  several  sums,  and  that  Albright  refused  to  de- 
liver the  deed  and  possession.  The  bill  states  that  Albright 
demands  a  mortgage  on  the  premises  for  the  consideration. 
The  bill  prays  the  specific  performance  of  the  agreement. 

The  answer  admits  the  agreement,  and  states  that  during 
the  negotiation,  it  was  understood  and  agreed  by  and  between 
the  parties,  that  the  balance  of  the  consideration,  beyond  the 


SEPTEMBER  TERM,  1846.  469 

Van  Scoten  v.  Albright. 

$200  to  be  paid  on  the  first  of  April,  the  day  on  which  the 
deed  was  to  be  delivered,  was  to  be  secured  by  a  mortgage  on 
the  premises,  and  that  the  complainant,  before  the  article  was 
drawn,  in  the  negotiations  previous  thereto,  agreed  so  to  secure 
the  said  balance.  The  defendant  admits  that  the  wagon  was 
delivered  to  him,  when  the  agreement  was  executed,  and  that 
he  accepted  it  in  part  of  the  consideration,  but  says  it  was  ac- 
cepted only  on  the  supposition  that  the  complainant  would  se- 
cure the  balance  according  to  such  previous  understanding. 
He  admits  the  tender  of  the  money  and  demand  of  the  deed, 
but  denies  that  the  complainant  at  the  same  time  offered  to  give 
his  promissory  notes  for  the  payment,  &c.,  as  stated  in  the  bill, 
or  to  leave  the  agreement  in  full  force  for  the  payment  of  the 
said  several  sums,  but  says  that  when  the  complainant  counted 
down  the  $200  and  demanded  a  deed,  he  asked  the  complain- 
ant if  that  was  all  he  had  to  offer,  and  the  complainant 
said  it  was,  and  all  he  was  bound  to  oifer;  and  that  he,  the  de- 
fendant, refused  to  deliver  the  deed.  He  admits  he  wrote 
the  article  of  agreement,  but  says  that  not  being  accustomed 
to  write  instruments  of  that  kind,  he  used  a  form  which  was 
for  cash  payments,  and  consequently  said  nothing  about  se- 
curing the  balance  of  the  purchase  money.  He  says  that  he 
had  a  good  warrantee  deed  for  the  premises  made  out  and  exe- 
cuted by  him  and  his  wife  to  the  complainant,  and  that  he  has 
never  refused  to  deliver  it,  provided  the  complainant  would  se- 
cure the  purchase  money  by  mortgage  ;  and  that  he  is  anxious 
that  the  complainant  should  accept  the  deed,  provided  he  secures 
the  purchase  money  by  mortgage,  according  to  the  spirit  and 
understanding  of  the  negotiations  and  agreements  betweeu 
them. 

The  answer  in  this  case  is  very  unnecessarily  long  and  tedi- 
ous, and  the  testimony  taken  quite  as  much  so.  The  com- 
plainant has  endeavored  to  show  by  testimony  that  Albright 
expressly  agreed  to  take  the  complainant's  notes  for  the  balance 
of  the  purchase  money.  The  evidence  does  not  show  it. 
Albright  has  endeavored  to  show  by  testimony  that  the  com- 
plainant agreed  to  give  a  mortgage  on  the  premises  for  it.  It 
would  be  unprofitable  to  give  a  minute  detail  of  that  evidence; 


470  CASES  IN  CHANCERY. 

Van  Scoten  v.  Albright. 

and  the  case  can  be  decided  satisfactorily  to  my  mind  without 
doing  so. 

By  the  agreement,  Albright  agrees  to  sell  the  tract  and  to 
make  a  deed  for  it  and  give  possession  on  the  1st  of  April, 
1844.  Van  Scoten  agrees  to  pay  $1850  in  cash,  and  a  wagon; 
$200  on  or  before  the  said  first  of  April,  1844;  $400  on  the 
first  of  April,  1845,  and  the  balance  in  installments  of  $200  a 
year.  There  is  nothing  said  in  the  agreement  either  of  notes 
or  of  a  mortgage  to  be  given  for  the  balance  of  the  purchase 
money.  The  complainant  says  in  his  bill,  that  when  he  ten- 
dered the  $200  and  demanded  a  deed,  he  offered  to  give  his 
notes  for  the  balance.  The  defendant  denies  this.  It  is  imma- 
terial to  the  question  now  involved,  whether  the  complainant 
offered  to  give  his  notes  or  not.  The  prayer  of  the  bill  is,  that 
Albright  be  decreed  to  convey ;  and  if  the  principle  on  which 
the  bill  goes  is  correct,  this  is  all  the  court  would  have  to  do. 
The  agreement  is  silent  as  to  anything  being  given  by  the 
complainant  by  way  of  security  for  or  evidence  of  the  further 
indebtedness  for  the  purchase  money.  Perhaps  the  draftsman 
of  the  bill  saw  that  if,  in  praying  for  a  deed,  he  tendered  him- 
self ready  to  give  his  notes  for  the  balance,  a  thing  not  called 
for  by  the  agreement,  he  might  be  asked  why  not  tender  a 
mortgage  ?  « 

The  case  comes  to  this  :  will  the  court,  when  asked  to  decree 
a  specific  performance  of  this  contract — a  matter  resting  in  the 
sound  judicial  discretion  of  the  court — decree  that  a  deed  shall 
be  given  without  making  provision  for  the  security  of  the  pur- 
chase money,  or  requiring  anything  to  be  given  by  the  com- 
plainant as  evidence  of  his  further  indebtedness  for  the  purchase 
money  ?  The  court  would  not  do  this,  unless  it  was  fully  sat 
isfied  of  the  sufficiency  and  sufficient  convenience  of  the  agree- 
ment itself  as  a  lien  for  the  purchase  money.  But  though  the 
purchase  money  might  be  a  lien,  it  is  not  such  a  one  as  the  court 
should  leave  the  defendant  to,  when  asked  by  the  complainant 
to  give  him  its  aid  in  enforcing  the  performance  of  the  agreement. 

If  the  complainant  is  unwilling  to  give  a  mortgage,  his  bill 
will  be  dismissed. 


SEPTEMBER  TERM,  1846.  471 


Ballentine  v.  Ballentine. 


BALLENTINE  v.  BALLENTINE. 

On  bill  by  a  wife  against  her  busband,  for  alimony  and  maintenance,  and 
for  the  support  and  maintenance  of  their  child,  and  answer  put  in  by  the 
busband,  and  petition  filed  by  the  complainant  for  a  proper  allowance,  until 
the  final  termination  of  the  suit,  and  for  an  order  directing  the  defendant  to 
pay  a  proper  sum  for  counsel  fees,  and  to  defray  the  expenses  of  the  suit,  the 
•ourt,  under  the  circumstances  of  the  case,  made  an  order  directing  the 

isband  to  pay  two  dollars  and  fifty  cents  a  week  towards  the  support  of  the 
child  and  the  complainant,  while  she  should  keep  the  child,  till  the  further 
order  of  the  court,  and  made  no  order  as  to  counsel  fees  and  expenses  of  the 
suit. 

The  bill  is  exhibited  by  the  wife  against  her  husband,  for 
alimony  and  maintenance  of  the  complainant,  and  for  the  sup- 
jM>rt  and  maintenance  of  their  child.  It  states  that  the  marriage 
took  place  May  13th,  1844,  in  Newark.  That  a  child  was 
born  of  the  marriage,  and  that  they  lived  together  in  Newark, 
till  June,  1845,  when  she  left  home,  with  the  consent  and  con- 
currence of  the  defendant,  and  under  the  care  of  her  brother, 
on  a  temporary  visit  to  her  said  brother,  in  Orange  county, 
New  York.  That  she  continued  in  Orange  county  near  four 
months.  That  in  October,  1845,  she  received  a  letter,  dated 
September  12th,  purporting  to  be  written  by  Asa  Whitehead, 
on  behalf  of  her  husband,  stating  that  her  husband  had  directed 
him  to  remit  to  her  twelve  dollars,  enclosed  in  the  letter,  for 
the  maintenance  of  the  child,  and  stating  that  the  writer 
understood  her  husband  to  say  that,  for  the  present,  he  would 
pay  fifty  dollars  a  year,  in  quarterly  payments,  for  the  same 
object,  and  that  he,  Ballentine,  did  not  consider,  after  what  had 
transpired,  that  he  was  bound,  or  ought  to  contribute  anything 
towards  her  maintenance.  That,  about  a  week  after  she  re- 
ceived this  letter,  she  set  out  from  the  house  of  her  brother,  and 
in  his  company,  to  return  to  Newark,  where  she  arrived  on 
Saturday  evening,  the  25th  October,  1845.  That,  shortly  after 
arriving  at  the  residence  of  her  husband,  he  came  in,  and,  on 
her  accosting  him,  he  made  no  reply,  but  left  the  house,  and 
that  his  mother  forbid  her  to  stay  in  the  house,  and  told  her 
they  had  business  so  arranged  that  she  could  not  come  back,  and 


472  CASES  IN  CHANCERY. 

Ballentine  v.  Ballentine. 

had  no  place  there ;  that  the  house  was  hers,  and  she,  the  com- 
plainant, could  not  live  there. 

The  bill  states  that  the  house  had  been  rented  by  Ballentine, 
for  a  year  from  April  1st,  1845.  That  she  remained  in  the 
house  that  night,  and,  finding  that  her  husband  absented  him- 
self from  the  house,  or  kept  out  of  the  way,  so  as  not  to  be  seen 
by  her,  and  evinced  a  determination  to  have  no  communication 
or  intercourse  with  her,  and  that  he  and  his  mother  designed  to 
drive  her  from  the  house,  she,  on  the  next  morning,  left  the 
house,  taking  her  child  with  her.  That,  about  a  week  or  tea 
days  after,  she  went  again  to  her  husband's  house,  and  took 
dinner  there.  That  her  mother-in-law  again  told  her  she  could 
not  have  a  home  there.  That  on  her  addressing  her  husband, 
and  attempting  to  come  to  some  understanding  with  him,  he 
made  no  reply — said  not  a  word  to  her — and  left  the  house. 
That  she  has  caused  applications  to  be  made  to  him,  to  make 
a  suitable  provision  for  her  support,  or  to  permit  her  to  live  with 
him,  but  he  has  declared,  in  answer  thereto,  that  he  would 
never  consent  to  have  her  live  with  him  again ;  and  he  has 
declined  and  refused  to  make  her  any  allowance  for  her  sup- 
port, offering  only  to  allow  twelve  shillings  a  week  for  the  main- 
tenance of  the  child.  That  her  husband  is  a  journeyman  jew- 
eler, and  earns  about  fifteen  dollars  a  week.  That  she,  previ- 
ous to  her  marriage,  was  a  mantuamaker ;  that  the  child  is 
between  ten  and  eleven  months  old,  and  of  a  delicate  constitu- 
tion, requiring  a  great  deal  of  her  time  and  attention. 

The  answer  of  the  defendant  states  that,  at  the  time  of  the 
marriage  and  of  the  birth  of  the  child,  the  parties  resided  in 
Newark,  and  that  the  defendant  has  ever  since  resided  in 
Newark.  That  the  complainant,  except  as  after  stated  in  the 
answer,  continued  to  reside  in  Newark  till  the  filing  of  her  bill. 
That  the  complainant  lived  with  him,  as  his  wife,  till  some  time 
in  June,  1845,  when  she  left  him.  He  denies  that  he  has  any 
knowledge,  information,  or  belief  that  the  complainant  was  then 
in  feeble  health,  or  debilitated  by  nursing  and  taking  care  of 
the  child,  but  says  that,  as  far  as  he  knows,  and  as  he  believes 
she  was,  when  she  left  with  her  brother,  Gilbert  Conklin,  as 
stated  in  her  bill,  in  June,  1845,  in  her  ordinary  good  health  ; 
that  he  has  no  knowledge,  remembrance,  or  belief  that  she  then 


SEPTEMBER  TERM,  1846.  473 


Ballentine  v.  Ballentine. 


complained  or  alleged  that  she  was  in  feeble  health,  or  debilita- 
ted, aforesaid,  or  that  she  had  any  occasion  to  go  away  on  ac- 
count of  her  health.  He  denies  that  she  left  him  on  a  tempo- 
rary visit  to  her  brother,  or  for  the  purpose  of  making  him  a 
visit;  but  says  that,  on  the  contrary,  before  she  left,  and  when 
she  left,  she  declared  her  intention  of  going,  and  that  she  did 
not  intend  to  return  ;  that  before  that  time  she  had  frequently 
said  she  did  not  wish  or  intend  to  live  with  him,  but  intended 
to  leave  and  live  separate  from  him  ;  that  before  she  went 
away  she  packed  up  all  her  wearing  apparel  and  her  bed,  in- 
cluding several  things  which  had  been  procured  after  the  mar- 
riage and  took  as  many  of  them  as  her  brother  could  carry  in 
his  wagon,  and  the  remainder  she  left,  with  directions  to  send 
them  to  the  house  of  her  friend,  James  Durie,  who,  she  said, 
would  send  them  to  her;  and  that  James  Durie  afterwards  call- 
ed for  the  same  and  carried  or  sent  them  to  the  complainant; 
that  he,  the  defendant,  told  the  complainant  there  was  a  house 
and  a  home  for  her,  and  that  she  could  remain  there  as  long  as 
she  pleased  ;  but  that  she,  notwithstanding,  declared  her  inten- 
tion of  leaving  him  and  not  to  live  with  him  again  ;  that  she 
expressed  her  utter  disregard  for  him,  and  among  other  oppro- 
brious observations,  said  she  thought  no  more  of  him  than  she 
did  of  a  negro;  and  when  he  showed  some  concern  at  the  man- 
ner in  which  she  was  proceeding,  she  slapped  her  hands,  and 
said  he  need  not  feel  bad  about  her  going  away,  for  she  was 
glad  she  was  going,  or  used  words  to  the  like  effect. 

That  th«  complainant  having  stated  to  him  her  determina- 
tion to  leave  him  and  to  go  to  Warwick,  in  the  State  of  New 
York,  with  her  child,  and  to  remain  there,  he  promised  to  pay 
her  fifty  dollars  a  year,  in  quarterly  payments,  for  the  care  and 
maintenance  of  the  child ;  and  that  in  pursuance  of  this  ar- 
rangement, he  procured  Mr.  Whitehead  to  write  her  and  en- 
closed twelve  dollars ;  that  Mr.  Whitehead,  in  the  letter  to  her, 
expressed  the  object  of  sending  said  money,  and  it  may  be  that 
in  other  respects  the  letter  is  as  stated  in  the  bill,  but  that  he 
has  no  copy  thereof  and  cannot  state  with  certainty.  He  says 
he  does  not  know  how  she  spent  her  time  at  Warwick,  but  de- 
nies that  she  went  thereon  a  temporary  visit ;  and  says  she  went 

VOL.  i.  2o 


474  CASES  IN  CHANCERY. 

Ballentine  v.  Ballentine. 

there  for  the  professed  purpose  of  taking  up  her  residence,  and 
with  the  declared  intention  of  not  returning  to  him. 

That  in  October,  1845,  four  months  or  more  after  she  left  as 
aforesaid,  she  returned  to  the  house  where  he  was  living  with 
his  mother,  in  Newark,  late  at  night ;  that  his  mother  prepared 
supper  for  her,  of  which  she  partook;  that  she  immediately  de- 
clared she  had  not  returned  for  the  purpose  of  staying;  that  her 
brother  had  been  informed  he  had  made  himself  liable  to  a 
prosecution  for  taking  her  away,  and  that  her  object  in  return- 
ing was  to  save  him  from  it;  that  she  desjred  an  omnibus  might 
be  sent  for,  to  take  her  to  Mr.  Durie's,  where  she  intended  to 
go ;  that  his  mother  invited  her  to  stay,  and  remonstrated  with 
her  against  going  out  at  so  late  an  hour,  and  after  considerable 
persuasion  she  consented  to  stay  all  night,  and  did  so ;  that  the 
next  morning,  between  six  and  seven  o'clock,  she  left  the  house, 
and,  as  he  has  been  informed  and  believes,  went  to  Mr.  Dune's  ; 
that  after  she  arose  in  the  morning,  his  mother  requested  her 
to  stay  to  breakfast,  but  she  declined,  and  went  away,  using 
opprobrious  language  both  with  respect  to  him  and  his  mother; 
that  he  received  no  notice  from  her  of  her  intention  to  return 
to  Newark,  previous  to  her  returning  as  aforesaid ;  that  after 
what  she  had  said  and  done  as  aforesaid,  he  was  much  surpris- 
ed, and  hardly  knew  what  her  object  was,  and  it  may  be  that 
he  made  no  reply  when  she  accosted  him ;  but  he  denies  that 
she  said  anything  to  him  by  which  she  expressed  any  desire  -to 
live  with  him  again  or  claiming  from  him  any  protection  as  her 
husband. 

He  says  he  was  not  present  at  any  conversation  between  his 
mother  and  the  complainant,  in  which  his  mother  used  the  lan- 
guage to  the  complainant  stated  in  the  bill,  nor  does  he  know 
whether  such  language  was  used  ;  and  he  denies  that  any  such 
language  was  used  by  his  request,  advice  or  direction.  He  ad- 
mits that  the  house  in  which  he  lived  when  complainant  return- 
ed to  Newark,  had  been  rented  by  him  from  April  1st,  then 
last  past,  for  one  year;  but  aays  that  the  furniture  in  the  house 
belonged  to  his  mother,  and  that  she  and  two  of  her  grandchil- 
dren lived  in  the  house  with  him,  and  that  she  had  the  charge 
and  direction  of  the  affairs  of  the  family.  That  from  the  lime 
complainant  returned,  to  the  filing  of  the  bill,  she  did  not,  either 


SEPTEMBER  TERM,  1846.  475 

Ballentine  v.  Ballentine. 

herself  or  through  any  other  person,  make  any  overture  or  ap- 
plication to  him  to  be  received  by  him,  or  to  live  with  him 
again  as  his  wife,  but  he  admits  he  was  applied  to  several 
times  on  her  behalf  to  make  a  provision  for  her  maintenance; 
and  he  says  he  offered  to  make  a  provision  for  the  support  of  the 
child  which  he  believed  and  was  advised  was  liberal  and  more 
than  necessary  for  that  purpose ;  that,  through  his  counsel,  he 
offered  to  pay  one  hundred  dollars  a  year,  and  give  security 
therefor,  on  security  being  given  to  indemnify  him  against  any 
further  charges;  that  he  understood  she  was  willing  to  receive 
that  sum,  and  supposed  the  matter  would  be  amicably  settled, 
but  that,  while  negotiations  were  pending,  the  complainant  sud- 
denly filed  her  bill.  Admits  that  application  was  made  to  him 
by  Durie  for  the  payment  of  complainant's  board  ;  that  he  re- 
ferred Durie  to  his  counsel,  Mr.  Whitehead,  and  he  is  informed 
and  believes  that  Durie  called  on  Mr.  W.,  and  that  Mr.  W.  sug- 
gested to  him  that,  as  negotiations  were  pending  for  an  arrange- 
ment, it  would  be  better  to  let  it  remain  till  the  negotiations 
were  concluded,  and  that  if  they  resulted  in  a  settlement,  there 
would  be  no  difficulty  in  his  bill  being  satisfactorily  adjusted ; 
in  which  suggestion  he  is  informed  and  believes  Mr.  Durie  ac- 
quiesced. 

He  says  he  is  informed  and  believes  that  Mr.  W.  said  nothing 
touching  the  defendant's  paying  or  being  liable  to  pay  said  bill, 
other  than  as  before  stated.  That  he  is  a  jeweler,  employed 
by  Isaac  Baldwin  &  Co. ;  that  his  wages  at  first  were  seven 
dollars  a  week  ;  that  for  eighteen  months  past,  or  thereabouts, 
they  have  amounted  to  fifteen  dollars  a  week ;  that  the  busi- 
ness is  subject  to  depressions,  and  that  depression  is  now  appre- 
hended ;  that  complainant  is  a  mantuamaker,  and,  as  far  as 
he  knows  and  believes,  is  now  in  good  health,  and  able  to  pur- 
sue her  business  and  provide  for  herself;  that  he  is  willing, 
either  to  take  charge  of  the  child  and  provide  for  it,  or,  for  the 
present,  to  let  it  remain  with  the  complainant  and  make  her  a 
liberal  compensation  for  her  care  of  it  and  its  maintenance.  He 
says  the  child  has  an  ordinarily  good  constitution,  and,  as  far  as 
he  knows  and  believes,  has  usually  been  in  good  health.  That 
he  has  no  estate  except  his  ordinary  wearing  apparel  and  a  few 
articles  of  furniture,  of  small  value,  and  a  small  sum,  not  ex- 


476  CASES  IN  CHANCERY. 

Ballentine  v.  Ballentine. 

ceeding  $110,  due  him  from  his  employers ;  and  that  he  is  solely 
dependent  for  his  support  on  his  daily  labor.  He  says  that 
one  of  the  propositions  made  by  complainant,  through  one  of 
her  friends,  to  his  counsel,  was,  that  he  should  pay  her  $100 
a  year  for  five  years,  and  that  she  would  take  care  of  herself 
and  the  child  ;  that  his  counsel  agreed  to  the  proposal,  with  the 
qualification  that  the  money  should  be  considered  as  paid  for 
the  support  of  the  child,  the  complainant,  however,  to  have 
the  disposition  thereof,  and  the  defendant  to  give  security  for 
the  payment,  on  condition  that  she  would  indemnify  him  against 
any  further  claim  on  her  account  or  that  of  the  child,  but  that 
she  refused  or  neglected  to  comply.  That  another  proposition 
made  by  her  was  that  he  should  pay  her  down  $500,  and  that 
she  would  take  care  of  herself  and  the  child,  but  that  she  of- 
fered no  adequate  security  for  his  indemnity,  and  he  declined 
the  proposition  as  well  because  he  considered  it  unjust  and  un- 
reasonable as  that  he  was  unable  to  comply  with  it  by  paying 
the  money,  and  that  no  adequate  security  was  offered  for  his 
indemnity. 

The  complainant  filed  a  petition  for  a  proper  allowance  until 
the  final  termination  of  the  suit,  and  for  an  order  directing  the 
defendant  to  pay  a  proper  sum  for  counsel  fees,  and  to  defray 
the  costs  and  expenses  of  the  suit,  and  by  her  cournsel  moved 
for  an  order  accordingly.  The  motion  was  resisted.  Affidavits 
were  read  in  opposition  to  the  motion. 

Wm.  M.  Sffudder,  for  the  motion.     H$  cited  8  Wend.  367, 
368;  2  Hoff.  Oh.  Pr.  246  ;  2  Paige  115,  621  j  1  John.  Chan. 
Rep.  108  ;  1  Edw.  Ch.  Rep.  382 ;  Ibid.  62. 
i 

A.  Whitehead,  contra.    He  cited  1  John.  Ch.  604 ;  6  Ibid.  91. 

THE  CHANCELLOR.  The  question  which  will  be  involved 
in  this  case,  if  it  proceeds  to  a  hearing  on  the  merits,  will  be, 
whether  the  defendant  has  abandoned  his  wife  or  separated 
himself  from  her  and  refused  or  neglected  to  maintain  and  pro- 
vide for  her.  Rev.  Stat.  924,  §  10.  The  bill  contains  no  charge 
that  he  has  neglected  or  refused  to  provide  for  her  in  his 


SEPTEMBER  TERM,  1846.  477 


Ballentine  v.  Ballentine. 


own  house,  nor  does  it  show  any  sincere  desire  on  her  pait  to 
go  back  to  his  house  and  live  with  him  as  a  wife  and  b>>  main- 
tained and  supported  by  him  there,  nor  is  there  any  sufficient 
reason  offered  in  the  bill  why  she  again  left  her  husband's  house 
the  morning  after  she  returned  from  the  State  of  New  York.  It 
is  her  duty  to  live  with  her  husband  unless  there  be  some  suffi- 
cient reason  for  leaving  his  house  ;  and  if  she  has  left  it  with- 
out sufficient  reason,  it  is  her  duty  to  return. 

The  nature  of  the  case  made  by  the  bill  may  be  considered 
on  an  application  for  alimony  pending  the  suit.  In  this  case, 
an  order  will  be  made  for  a  weekly  allowance  of  two  dollars 
and  fifty  cents,  for  or  towards  the  support  of  the  child  of  the 
complainant  while  she  keeps  the  child,  until  the  further  order 
of  the  court.  The  other  branch  of  the  motion  is  denied. 

Order  accordingly. 

CITED  in  Martin  v.  Martin,  4  Sal.  Ck.  569. 


THE  ADMINISTRATOR  OF  EDWARD  S.  BELL  v.  JOHN  H.  HALL 
AND  HENRY  B.  STOLL. 

A  and  B,  partners,  dissolved  partnership,  and  by  the  articles  of  dissolution 
A  took  the  property  of  the  partnership,  and  agreed  to  pay  the  debts  of  the 
partnership,  and  to  relieve  B  therefrom,  and  to  pay  B  the  balance  due  him  of 
the  capital  invested  by  him,  and  the  further  sum  of  f  1600  for  his  share  of 
the  stock  and  profits  of  the  partnership.  After  the  dissolution,  a  creditor  of 
the  partnership  obtained  a  judgment  against  A  and  B  for  a  debt  of  the  firm, 
for  $607.91,  and  issued  execution  thereon,  which  was  levied  on  the  personal 
and  real  estate  of  both  A  and  B.  A's  personal  property  so  levied  on,  consist- 
ing of  store  goods  and  other  personal  property,  was  afterwards  assigned  to  C, 
the  father-in-law  of  A.  A  afterwards  sold  to  D  the  stock  of  goods  he  then  had 
on  hand,  and  C  thereupon,  by  writing  under  seal,  released  to  D  all  his  inter- 
est in  the  goods  under  and  by  virtue  of  the  said  execution,  with  full  knowl- 
edge of  the  terras  of  the  dissolution.  Held  that  the  judgment  could  not  be 
enforced  against  B. 

The  facts  of  this  case  sufficiently  appear  in  the  opinion  of  the 
Chancellor. 

C.   8.   Leport  and   F.  T.  Frdinghuysen,  for   the  complain- 
ant.    They   cited    Montague    on    Part.    204;  17   John.   Rep. 


478  CASES   IN  CHANCERY. 

Bell  v.  Hall. 

384;  13  Ibid.  174;  7  Ibid.  336 ;  10  Wend.  162;  1  M>  Cord's 
Ch.  443 ;  1  Story's  Eq.,  §  325,  326,  449,  499 ;  4  Harr.  Rep. 
167. 

W.  8.  Johnson  and  D.  Haines,  for  the  defendants.  They 
eked  Theobald  on  Principal  and  Surety  239,  240 ;  1  Law 
Lib.  84,  135,  142,  143;  2  Swanst.  185;  4  Fesey  824  ;  1  Sto- 
ry'* Eg.,  §§  163,  676;  8  Wheat.  212;  1  Peters  16;  6  Hals. 
224 ;  2  South.  584. 

THE  CHANCELLOR.  On  the  16th  March,  1840,  Henry  B. 
Stoll  and  Edward  S.  Bell  entered  into  partnership  as  merchants 
in  Stanhope,  under  the  partnership  name  of  Stoll  &  Bell,  each 
furnishing  an  equal  amount  of  capital.  They  purchased  a 
stock  of  goods  on  the  same  day,  from  Andrew  A.  Smalley,  for 
the  purposes  of  their  partnership,  amounting  to  $3750,  for 
which  they  gave  Smalley  their  notes,  in  different  sums,  payable 
at  different  periods. 

On  the  llth  March,  1841,  the  partnership  was  dissolved  by 
mutual  consent,  by  agreement  in  writing  and  under  seal.  By 
this  agreement,  Stoll  took  the  stock  of  goods  and  merchandise 
then  on  hand  belonging  to  the  partnership,  and  all  the  books 
of  account,  notes,  bonds,  moneys  and  effects  of  the  partnership, 
and  all  debts  due  the  partnership,  Bell  relinquishing  all  claim 
thereto;  and  Stoll  agreed  to  pay  all  the  debts  of  the  partner- 
ship, and  to  relieve  Bell  therefrom,  and  to  pay  Bell  the  balance 
due  him  of  the  capital  invested  by  him,  and  the  further  sum 
of  $1600,  for  his  share  of  the  stock  and  profits  of  the  partner- 
ship. One  of  the  notes  from  Stoll  &  Bell  to  Smalley  passed 
into  the  hands  of  Coursen  &  Woodruff,  of  New  York  ;  it  was 
for  $583.91.  On  the  23d  May,  1843,  Coursen  &  Woodruff 
recovered  judgment  on  this  note  against  Stoll  &  Bell,  in  the 
Circuit  Court  of  Sussex,  for  $607.91  damages,  and  $36.41 
costs,  and  thereupon  issued  execution,  returnable  to  the  term 
of  August,  1843,  of  that  court,  which  was  put  into  the  hands 
of  the  sheriff  on  the  26th  May,  1843.  By  virtue  of  this  writ, 
the  aheriff  levied  on  the  personal  and  real  estate  of  both  Stoll 
&  Bell.  The  property  of  Stoll  levied  on  consisted  of  store 


SEPTEMBER  TERM,  1846.  479 


Bell  v.  Hall. 


goods,  household  furniture,  a  pair  of  horses,  &c.,  and  also  a 
house  and  lot  in  which  Stoll  lived. 

The  under  sheriff  says  this  levy  was  made  about  the  1st  of 
June,  1843  ;  and  that,  after  he  had  received  the  execution,  he 
called  on  Bell,  and  Bell  told  him  it  was  a  debt  of  the  firm,  and 
to  be  paid  by  Stoll ;  that  he  then  called  on  Stoll  and  informed 
him  of  the  execution,  and  asked  him  if  it  was  his  debt  to  pay, 
and  he  said  it  was;  that,  in  consequence  of  this,  he  took  a  more 
full  and  particular  levy  of  the  property  of  Stoll  than  that  of 
Bell.  In  the  latter  part  of  August,  1843,  the  deputy  sheriff 
advertised  the  said  estate  of  both  the  defendants  iu  the  said  exe- 
cution by  hand-bills.  The  under  sheriff  further  says  that,  before 
the  time  arrived  for  advertising  in  the  papers,  he  received  notice 
.that  the  judgment  had  been  assigned  to  John  H.  Hall.  He 
thinks  Hall  showed  him  the  assignment;  and  his  impression  is, 
that  it  was  in  consequence  of  directions  from  Hall  that  he  did 
not  put  advertisements  in  the  papers.  He  believes  he  had  a 
written  stay  from  Hall.  He  says  he  was  called  on  several  times 
by  Bell,  and  urged  by  him  to  proceed  with  the  execution ;  that 
he  uniformly  told  Bell  he  was  under  the  direction  of  Hall  in 
relation  to  the  matter,  and  could  not  go  on  without  his  instruc- 
tions. 

The  judgment  was  assigned  by  Coursen  <fe  Woodruff  to  Hall 
in  September,  1843;  the  assignment  bears  date  September  20th, 
1843  ;  the  receipt  of  E.  W.  Whelpley,  the  attorney  of  Conrsen 
&  Woodruff,  is  dated  September  25th,  1843  ;  it  is  for  John  H. 
Hall's  note  for  $548.22,  at  six  months,  endorsed  by  John  Bell, 
ou  account  of  assignment  of  Courseu  &  Woodruff's  judgment 
against  Stoll  &  Bell. 

Courseu  says  the  assignment  was  made  to  Hall  at  the  urgent 
request  of  Stoll.  It  seems  to  have  been  executed  on  the  20th, 
and  sent  out  by  Courseu  &  Woodruff  to  their  attorney. 

The  answer  says  that,  on  or  about  September  1st,  1843,  Stoll 
paid  $125  to  Coursen  &  Woodruff  on  their  execution. 

Hall  admits  that  the  Coursen  &  Woodruff  judgment  against 
Stoll  &  Bell  was  for  their  joint  debt,  and  that  it  was  so  under- 
stood by  him  at  the  time  he  became  the  owner  of  it.  He  admits 
he  stayed  the  execution  till  his  further  order,  and  says  that,  at 
the  time  of  the  assignment  to  him  of  the  judgment  of  Coursea 


480  CASES  IN  CHANCERY. 

Bell  v.  Hall. 

&  Woodruff  he  had  no  knowledge  or  intimation  of  any  agree- 
ment or  understanding  between  Stoll  &  Bell  that  Stoll  was  to 
pay  the  debts  of  the  firm,  as  alleged  in  the  bill ;  that  he  has 
never  seen  any  such  agreement  or  understanding,  and  had  no 
knowledge  of  any  till  some  time  after  the  assignment  and  stay 
of  execution,  when  it  was  alleged  by  Bell  that  Stoll  was  bound 
to  pay  all  the  debts  of  the  firm.  He  admits  that  Robert  P.  Stoll, 
about  the  1st  of  October,  1843,  called  on  him  and  stated  to  him 
that  Bell  wished  the  money  due  on  the  Coursen  &  Woodruff 
execution  to  be  raised  out  of  the  property  of  Stoll  only,  or  words 
to  that  effect ;  but  says  that  Robert  did  not  represent  himself  as 
the  agent  of  Bell,  or  that  he  came  at  his  request. 

About  the  20th  November,  1843,  H.  B.  Stoll  agreed  to  sell  to 
Srnalley  the  stock  of  goods  he  then  had,  at  $1300;  and  three 
notes  were  drawn  for  the  consideration  money  ;  but,  before  the 
notes  were  delivered,  Smalley  told  Stoll  he  wanted  to  be  satis- 
fied that  there  was  no  encumbrance  on  the  goods.  Smalley  tes- 
tifies that  Stoll  told  him  there  was  no  encumbrance  on  the  goods, 
and  wished  him  to  give  him  the  notes.  That,  soon  after  this, 
he,  Smalley,  ascertained  that  a  judgment  had  been  obtained  by 
Coursen  &  Woodruff  against  Stoll  &  Bell,  and  that  execution 
had  been  issued  thereon,  and  levied  on  Stoll's  store  goods ;  and 
that  the  judgment  had  been  assigned  to  Hall. 

On  the  25th  November,  1843,  Hall,  by  writing  under  seal, 
released  to  Smalley  all  his  right  to  the  goods  under  and  by  virtue 
of  the  said  execution.  Smalley  says  that,  in  the  course  of  the 
negotiation  between  him  and  Stoll,  Stoll  told  him  that  Hall  was 
to  have  the  notes,  or  a  part  of  them  ;  that  Stoll  married  a 
daughter  of  Hall,  and  his  wife  is  living. 

On  the  24th  November,  1843,  Stoll  conveyed  to  Hall  his 
real  estate.  Jt  was  subject  to  mortgages.  On  the  2d  Decem- 
ber, 1843,  Hall  gave  his  note  -to  Andrew  Shiner  for  $711,  at 
fifteen  mouths,  with  interest,  for  a  debt  of  Stoll's.  On  the  same 
day,  Stoll  gave  his  note  to  Hall  for  $711,  at  fifteen  months, 
with  interest,  stating  in  the  body  of  it,  that  it  was  for  value 
mvived  by  the  note  of  Hall  that  day  given  to  the  order  of  A. 
Shiner,  for  his,  Stoll's,  debt.  Hall  gave  his  receipt,  of  the  date 
of  December  13th,  1843,  acknowledging  the  receipt  from  Stoll  of 
two  notes  of  Smalley,  dated  November  20th,  1843,  for  $433.23 


SEPTEMBER  TERM,  1810.  48\ 

Bell  v.  Hall. 

cadi,  payable,  one  in  twelve  and  the  other  in  twenty-four 
months  from  date,  stating  that,  out  of  the  proceeds,  when  col- 
lected, he  is  to  deduct  the  amount  that  may  then  be  due  on 
Stall's  note  to  him  of  2d  December,  1843,  for  $711,  at  fifteen 
months,  with  interest,  and  pay  Stoll  the  balance.  On  the  face 
of  this  receipt  is  written,  "Settled  by  Uie  note  of  $711,  and 
endorsing  $88.16  on  note  of  20th  June,  1844,"  being  a  note  of 
this  date,  fur  $250,  ou  demand,  with  interest,  given  by  Stoll  to 
Hall. 

On  the  face  of  the  note  from  Stoll  to  Hall,  of  December  2d, 
1843,  for  $711,  is  written,  "Paid  20th  November,  1844,  pass- 
ing two  of  the  Sraalley  notes  to  Coursen  &  Co.,  and  taking  up 
my  note  for  which  this  was  given." 

It  seems  that  the  note  for  $711,  given  by  Hall  to  Shiner,  was 
to  satisfy  a  ca.  sa.,  which  Shiner,  as  sheriff,  had  against  H.  B. 
Stoll  and  R.  P.  Stoll,  in  favor  of  Courseu  &  Co.,  on  which  H. 
B.  Stoll  had  been  arrested. 

The  foregoing  facts  seem  to  be  undisputed.  It  is  further 
alleged,  in  the  bill,  that  Hall  had  notice  of  the  terms  of  the 
agreement  of  dissolution  before  he  received  the  assignment  of 
the  judgment  of  Courson  &  Woodruff. 

Hall's  answer  to  this  charge  is  not  so  clear  and  satisfactory 
as  it  might  have  been,  and  there  is  some  very  persuasive  evi- 
dence that  he  might  have  had  such  notice  before  he  received 
the  assignment,  but  I  do  not  think  it  necessary  to  determine 
how  this  is.  There  can  be  no  doubt,  from  Hall's  answer,  and 
the  proofs  in  the  case,  that  before  he  released  to  Smalley  his 
right  to  the  goods,  by  virtue  of  the  execution,  he  knew  that 
Stoll,  by  the  agreement  of  dissolution,  was  to  pay  the  debts  of 
the  firm  of  Stoll  &  Bell,  and  there  is  evidence  quite  satisfactory 
to  my  mind,  that  he  had  been  urged  by  Bell  to  proceed  to  a  sale 
on  the  execution. 

"  If  Hall,  before  he  received  the  assignment  of  the  judgment 
and  execution,  knew  that  Stoll  was  to  pay  the  debts  of  the  firm, 
then  the  acts  of  Hall,  which  followed  the  assignment,  are,  it 
seems  to  me,  very  strong  to  show  a  design  in  Hall,  in  taking 
the  assignment,  to  aid  Stoll  in  withdrawing  his  property  that 
had  been  levied  on  from  the  lieu  of  the  execution,  and  compel- 
iug  the  sheriff  to  make  the  debt  out  of  the  property  of  Bell. 


482  CASES  IN  CHANCERY. 

Bell  v.  Hall. 

The  resort  to  such  a  measure,  and  the  urgency  of  Stoll  to  have 
the  judgment  assigned  to  Hall,  show  that,  in  all  probability,  if 
Coursen  &  Woodruff  had  retained  the  judgment  and  execution; 
they  would  have  made  the  debt  out  of  Stoll's  property,  and  this 
probability  is  greatly  strengthened  by  the  testimony  of  under- 
sheriff  M'Carter.  Stoll  had  told  him  it  was  his  debt  to  pay, 
and  he  had,  in  consequence  thereof,  taken  a  fuller  and  more 
particular  levy  on  the  property  of  Stoll  than  on  that  of  Bell, 
and  had  levied  on  property  of  Stoll  amply  sufficient  to  pay  the 
whole  debt. 

I  am  very  much  inclined  to  think  that  if  Stoll  could  have 
influenced  Coursen  &  Woodruff  to  take  the  same  course  that 
Hall  took  after  he  received  the  assignment,  i.  e.,  relieve  his 
goods  and  drive  the  sheriff  on  the  property  of  Bell,  no  assign- 
ment would  have  been  urged  or  made. 

If  I  thought  the  case  required  me  to  go  so  far,  in  order  to  re- 
lieve the  complainant,  I  should  find  it  very  difficult  to  avoid 
the  conclusion  that,  at  least  as  early  as  when  he  gave  his  note  to 
Mr.  Whelpley,  the  attorney  of  Coursen  &  Woodruff,  for  the 
assignment,  Hall  was  sufficiently  apprised  of  the  terms  of  the 
dissolution,  and  of  the  object  of  Stoll's  agency  and  urgency  in 
having  the  assignment  made.  If  he  was,  then  he  lent  himself 
to  aid  Stoll  in  the  design  of  relieving  his  property  from  an  exe- 
cution debt  which,  as  between  him  and  Bell,  he  was  bound  to 
pay,  and  of  throwing  the  debt  upon  Bell.  This  would  not  be 
countenanced  in  equity.  But,  as  I  have  said  before,  I  do  not 
think  it  necessary  to  go  so  far.  It  is  clear  that,  before  Hall  gave 
the  release  to  Smalley,  he  knew  that,  by  the  terms  of  the  disso- 
lution, Stoll  was  to  pay  this  debt,  and,  on  being  asked  to  give 
the  release,  he  could  not  fail,  with  his  knowledge  of  the  course 
things  had  taken,  to  perceive  that  he  was  asked  to  do  a  posi- 
tive act  which  would  give  effect  to  all  the  preceding  steps  in  the 
transaction,  and  to  perceive  what  must  have  been  Stoll's  design 
from  the  beginning.  His  giving  the  release,  under  such  cir- 
cumstances, must  be  considered  as  an  adoption,  with  full  knowl- 
edge, of  Stoll's  aim  and  object,  and  a  positive  agency  in. 
accomplishing  them.  If  Hall  had,  before,  but  indistinct  glim- 
merings of  the  design,  not  amounting  to  knowledge  or  informa- 
tion, it  was  now  fully  revealed  to  him,  and,  if  he  might  have  re- 


SEPTEMBER  TERM,  1846.  483 


Bell  v.  Hall. 


mained  passive,  and  permitted  the  sheriff  to  take  his  own 
course  on  the  execution,  and  make  the  money  where  he  pleas- 
ed;  or  if  the  sheriff  threatened  to  sell  Bell's  property  first, 
might  have  stood  still  and  left  Bell  to  his  application  to  this 
court,  I  cannot  think  he  was  at  liberty  to  do  a  positive  act  inju- 
rious to  Bell,  by  releasing  the  goods  and  thereby  rendering  it 
impossible  either  for  the  sheriff  to  sell  them  to  raise  the  debt,  or 
for  Bell  to  take  any  measures  to  that  end. 

It  appears  to  me  that  a  regard  for  the  doctrines  of  this  court, 
and  a  purpose  to  give  them  their  due  influence  and  control  over 
the  transactions  of  men,  require  me  to  say  that  Hall  should  not 
have  released  the  goods  without  stipulating  for  the  payment  of 
his  judgment  and  execution  out  of  the  proceeds  of  the  sale  to 
Smalley. 

I  do  not  think  it  necessary  to  order  a  reference  to  ascertain 
how  much,  in  amount,  of  Stoll's  goods  that  were  levied  on,  re- 
mained in  the  store  at  the  time  of  the  sale  of  the  stock  to 
Smalley.  It  would  be  a  very  difficult  inquiry,  and  it  is  not 
likely  that  any  more  satisfactory  evidence  could  be  produced  on 
this  part  of  the  subject  than  is  now  before  the  court;  and  I  am 
inclined  to  think  from  the  testimony  that  the  sheriff  could  have 
made,  from  his  levy  on  the  goods  of  Stoll,  enough  to  pay  the 
balance  due  on  the  execution. 

Again,  it  appears  to  me  that  the  release,  with  the  full  knowl- 
edge Hall  had  at  the  time  it  was  made,  was  such  an  adoption 
of  all  the  preceding  acts  tending  to  the  same  end,  that  he  should 
be  held  responsible  for  the  effects  of  the  stay  of  execution,  even 
if  it  be  doubtful  whether  he  had  sufficient  knowledge  before  the 
stay  to  charge  him  with  its  effects. 

I  am  of  opinion  that  Bell  and  his  property  are  relieved  from 
the  judgment. 

Decree  accordingly. 


484  CASES  IN  CHANCERY. 


Smith  v.  Ex'rs  of  Smith. 


BENJAMIN  SMITH  AND  OTHERS  v.  THE  EXECUTORS  OF  BEN- 
JAM1N  SMITH  AND  OTHERS. 

On  bill  stating  that  J.  B.  S.  left  the  state  more  than  seven  years  before,  and 
had  not  been  heard  from,  and  founded  on  the  presumption  of  his  death  thence 
arising,  and  answer  admitting  the  absence,  but  denying  that  he  had  not  been 
heard  from,  and  stating  that  the  defendants  are  informed  and  believe  that  he 
had  been  heard  from,  and  replication — held,  that  unless  the  defendants  made 
proof  that  J.  B.  S.  was  alive  within  the  seven  years,  the  presumption  of  his 
death  arising  at  the  expiration  of  the  seven  years  stood. 


Benjamin  Smith,  deceased,  late  of  Elizabethtown,  died  in 
November,  1824,  leaving  a  will,  by  which,  after  giving  several 
legacies,  he  gave  the  residue  of  his  estate  to  the  children  of  his 
nephews,  Benjamin  Smith  and  Israel  Smith,  share  and  share 
alike,  "to  them,  the  survivors  or  survivor  of  them  at  the  time 
any  dividend  is  made  for  them  by  my  executors." 

No  dividend  was  made  by  the  executors  until  1840.  The 
executors,  when  they  made  the  dividend,  retained  the  share  that 
would  be  payable  to  Jasper  B.  Smith,  if  he  was  alive. 

Jasper  B.  Smith  left  the  state  in  1829,  and  the  bill  was  filed 
by  the  other  children  of  Benjamin  Smith  and  Israel  Smith,  to 
recover  their  shares  of  the  portion  so  retained  by  the  executors 
as  and  for  the  share  of  Jasper  B.  Smith. 

The  bill,  filed  in  1844,  states  that  Jasper  B.  Smith  left  the 
state  in  1829,  being  then  a  minor  of  about  nineteen  years  of 
age,  and  had  not  shijce  been  heard  from;  and  is  founded  on 
the  presumption  of  his  death  thence  arising,  under  the  provis- 
ions of  our  "act  declaring  when  the  death  of  persons  absenting 
themselves  shall  be  presumed."  Rev.  Stat.  781. 

The  answer  admits  that  Jasper  B.  Smith  left  the  state  in 
April,  1829,  but  denies  that  he  had  not  been  heard  from;  and 
states  that  the  defendants  are  informed  and  believe  that  he  had 
been  heard  from  twice  since  he  absented  himself  from  the  state, 
once  in  August,  1830,  and  once  in  the  fall  of  1835. 

A  replication  was  filed  and  proofs  were  taken  in  the  cause. 

J.  C.  Poets,  for  the  complainants. 
Wm.  Halittcd,  for  defendants. 


SEPTEMBER  TERM,  1846.  485 

Ex'rs  of  Vandyne  v.  Vanness. 

THE  CHANCELLOR.  The  statute  provides  that  any  person 
who  shall  absent  himself  or  herself  from  the  state  for  seven 
years  successively,  shall  be  presumed  to  be  dead,  unless  proof 
be  made  that  he  or  she  was  alive  within  that  time.  The  bill 
states  that  Jasper  B.  Smith  left  the  state  in  1829,  and  that  he 
has  never  been  heard  from  since.  The  answer  admits  his  ab- 
sence from  the  state  since  1829,  but  says  he  has  been  heard 
from.  A  replication  was  filed  by  the  complainants. 

The  words  of  the  statute  and  the  reason  of  the  thing  require 
that,  unless  proof  be  made  that  the  person  absenting  himself  has 
been  heard  from,  the  presumption  of  his  death  arises  at  the  ex- 
piration of  seven  successive  years  of  absence.  The  party  seek- 
ing to  avoid  this  presumption,  or,  rather,  to  prevent  its  arising, 
can  do  it  only  by  showing  that  the  absent  person  was  alive  within 
the  seven  years.  There  is  nothing  in  the  evidence  to  show  that 
Jasper  was  alive  within  seven  years  after  he  left  the  state. 

As  the  case  stands  in  proof,  he  left  the  state  in  the  spring  of 
1829,  and  the  presumption  of  his  death  arose  in  1836.  No  divi- 
dend had  then  been  made,  and  by  the  terms  of  the  will  the  es- 
tate was  to  be  divided  among  the  surviving  residuary  legatees. 


THE  EXECUTORS  OF  NICHOLAS  VANDYNE  v.  JACOB  8.  VAN- 
NESS  AND  OTHERS. 

1.  Construction  of  the  mechanics'  lien  law  applicable  to  some  parts  of  the 
•kite 

2.  A  carpenter  finished  a  dwelling-house  on  a  tract  of  land  on  the  17th 
November,  1842,  and  filed  his  claim  in  the  office  of  the  clerk  of  the  county, 
on  the  17th  January,  1843.    On  the  22d  December,  1842,  the  owner  of  the 
land,  then  in  possession  of  the  house,  mortgaged  it  to  a  person  having  no 
actual  knowledge  of  the  carpenter's  lien.     Held,  that  the  carpenter's  lien  was 
prior  to  that  of  the  mortgage. 

3.  It  was  held  that  the  carpenter's  lien  was  not  confined  to  the  house  and 
the  ground  it  covered,  but  extended  to  so  much  of  the  tract  of  land  on  which 
the  house  was  built  as,  with  the  house,  would  be  required  to  discharge  it. 


Bill   for   the   foreclosure  of  a  mortgage  given  by  Jacob  S. 
Vanness  to  Nicholas  Vandyne,  biuce  deceased,  dated  Novem- 


486  CASES  IN  CHANCERY. 

Ex'rs  of  Vandyne  v.  Vanness. 

her  24th,  1838,  and  recorded  November  24th,  1838.  T.  B.  & 
I.  Odell  and  Evert  Van  ness,  subsequent  mortgagees,  and  Henry 
H.  Vanness,  Morrell  &  Post,  Wilson  &  Wilson  and  Daniel 
Schoonmaker,  subsequent  judgment  creditors  of  the  mortgagee, 
were  made  defendants. 

The  defendant  Schoonmaker,  in  his  answer,  states  that  he  is 
a  carpenter ;  that  on  or  about  January  17th,  1842,  he  entered 
into  an  agreement  with  J.  S.  Vanness,  by  which  Vanness 
employed  him  to  build  a  dwelling-house,  store-house,  and  other 
improvements  on  part  of  the  tract  of  land  mentioned  in  the 
mortgage  of  the  complainants ;  and  that  he,  soon  thereafter, 
commenced  labor  thereat,  and  employed  laborers  and  workmen 
in  preparing  materials  and  putting  up  said  improvements  ;  and 
that  he  finished  the  same  on  or  about  November  17th,  1842. 
That  on  or  about  January  17th,  1843,  within  six  months  after 
the  completion  of  the  said  work,  he  filed  in  the  clerk's  office  of 
the  county  of  Passaic,  a  claim  in  writing  for  his  said  work  and 
labor,  in  the  words  and  figures,  &c.,  (giving  the  claim  as  filed,) 
with  a  declaration  annexed  thereto  of  holding  a  lien  on  the  said 
buildings  for  the  balance  of  $312.86,  under  and  by  virtue  of  an 
net  of  the  legislature  of  the  State  of  New  Jersey,  entitled  "  An 
act  for  securing  to  mechanics  and  others  payment  for  their  labor 
and  materials  in  erecting  any  house  or  other  building  within  the 
limits  therein  mentioned,"  passed  March  3d,  1835,  and  the  sup- 
plement thereto.  .'•  -. 

That  on  or  about  February  8th,  1843,  within  six  months 
after  the  completion  of  said  work,  he  brought  an  action  on  the 
case,  in  the  Circuit  Court  of  Passaic  county,  for  the  recovery  of 
his  said  claim  thus  filed  ;  that  he  filed  a  declaration  in  that  ac- 
tion for  the  amount  due  hini  on  his  said  claim,  and  in  his  dec- 
laration claimed  as  having  a  lien  on  all  the  said  dwelling-house, 
Ktore  and  improvements,  and  also  on  all  that  lot  of  land  begin- 
ning at  the  S.  W.  corner  of  the  lot  belonging  to  D.  Schoonma- 
ker, and  on  the  line  of  the  Newark  and  Pompton  turnpike  road  j 
thence  running  south  along  said  road  300  feet ;  thence  easterly 
and  at  right  angles  to  said  road  150  feet;  thence  north  300  feet 
losaid  D.  Schoon maker's  line;  thence  west  150  feet  to  the  place 
of  beginning.  That  J.  S.  Vanness  defended  the  said  action, 
and  that,  on  the  J9th  July,  1843,  he  obtained  a  judgment 


SEPTEMBER  TERM,  1846.  487 

Ex'rs  of  Vandyne  v.  Vanness. 

against  Vanness,  on  the  verdict  of  a  jury,,  for  $300.86  damages 
and  $46.58  costs. 

He  admits  that  on  or  about  February  llth,  1843,  Cornelias 
Vanness  filed  in  the  clerk's  office  a  lien  or  claim  of  about  $60 
for  mason  work  done  to  said  house  and  buildings,  and  that  on 
or  about  February  25th,  1843,  Jacob  Vanness  assigned  to 
James  Vanness  all  his  estate,  real  and  personal,  in  trust  for  his 
creditors,  and  that  said  deed  of  assignment  was  acknowledged 
And  recorded  as  stated  in  the  bill. 

He  says  that  the  said  action  brought  by  him  against  said  J. 
S.  Vanness,  was  brought  and  prosecuted  under  the  said  act  of 
the  legislature  and  the  said  supplement  thereto.  That  on  or 
about  July  19th,  1843,  execution  was  issued  on  his  said  judg- 
ment, directed  to  the  sheriff  of  Passaic  county,  commanding 
him  to  sell  the  said  dwelling-house  and  other  buildings  and  the 
lot  of  land  on  which  the  same  was  erected,  in  the  township  of 
'anchester,  in  the  county  of  Passaic,  aforesaid,  the  said  lot  of 
land  being  therein  particularly  described  ;  and  that  the  sheriff, 
by  virtue  of  said  execution,  levied  on  the  said  buildings  and 
land  ;  and  he  claims  that  by  reason  of  the  facts  set  forth  in 
his  answer,  the  claim  thus  filed  by  him  was  a  lien  on  the  said 
buildings  and  the  land  on  which  they  were  erected,  and  that 
the  encumbrances  of  the  other  defendants  are  all  subsequent  to 
the  completion  of  his  work  on  the  said  buildings.  He  insists 
that  if,  on  a  sale  of  the  property  under  a  decree  of  this  court, 
there  should  not  be  enough  raised  to  satisfy  the  complainant's 
mortgage  and  his  lien,  he  is  entitled,  either  to  be  paid  a  rata- 
ble proportion  with  the  complainant,  of  the  proceeds  of  the  sale, 
or  that  he  has  a  priority,  next  subsequent  to  the  complainant's 
mortgage,  over  all  the  other  encumbrances  ;  and  he  submits  that 
the  premises  covered  by  the  complainant's  mortgage,  excepting 
thereout  the  lot  of  land  on  which  the  buildings  were  erected, 
and  on  which  he  has  filed  his  lien,  obtained  judgment  and  is- 
sued execution,  should  be  first  sold. 

The  answer  of  Morrell  &  Post  states  that  they  are  lumber 
merchants,  and  that  in  1842,  J.  S.  Vauness,  being  in  posses- 
sion of  the  mortgaged  premises,  which  were  then  lawfully  en- 
cumbered, as  they  are  informed  and  believe,  only  by  the  mort- 
gage of  the  complainants,  and  being  about  to  erect  on  the  mort- 


488  CASES  IN  CHANCERY. 

Ex'rs  of  Vandyne  v.  Vanness. 

gaged  premises,  or  a  part  of  them,  a  dwelling-house  and  store, 
they,  on  his  application,  and  from  July  27th,  1842,  to  October 
13th,  1842,  furnished  him  with  lumber  to  the  value  of  $235.99, 
which  was  used  by  Vanness  in  and  about  the  erection  of  said 
buildings  on  a  part  of  the  mortgaged  premises.  That  within 
six  months  after  furnishing  the  lumber,  and  on  the  21st  Janu- 
ary, 1843,  they  filed  their  claim  for  said  lumber  in  the  clerk's 
office  of  the  county  of  Passaic.  That  at  the  term  of  February, 
1843,  of  the  Circuit  Court  of  Passaic  county,  they  brought  an 
action  against  Vanness  for  the  recovery  of  their  said  claim,  and 
that  on  the  18th  July,  1843,  they  recovered  for  their  said  claim 
a  judgment  against  Vanness  for  $235.97  damages  and  $33.92 
costs.  That  execution  was  issued  on  said  judgment,  against 
the  buildings  and  the  land  whereon  the  same  were  erected,  and 
delivered  to  the  sheriff,  which  remains  in  his  hands  unsat- 
isfied. 

The  answer  of  the  Odells  states  that  on  or  about  December 
9th,  1842,  J.  S.  Vanness  applied  to  them  for  dry  goods  on 
credit,  and  represented  to  them  that  his  farm  and  improvements, 
(being  the  same  described  in  the  bill,)  were  free  from  encum- 
brance except  the  mortgage  held  by  the  complainants,  and 
offered  them  a  mortgage  on  the  same  premises  for  the  goods  he 
wanted.  That  they  thereupon  made  inquiries  as  to  the  situa- 
tion and  value  of  the  premises,  and  having  caused  the  records 
to  be  searched,  found  no  encumbrance  thereon  except  the  mort- 
gage held  by  the  complainants.  That  in  reliance  on  the  secu- 
rity proposed,  they  sold  to  Vanness  the  goods  he  wanted.  That 
Vanness,  having  thus  become  indebted  to  them,  on  the  22d 
December,  1842,  gave  them  his  bond  of  that  date,  conditioned 
for  the  payment  of  $1000  on  or  before  the  22d  June  following, 
with  interest,  and  that,  to  secure  the  said  bond,  Vanness  and 
his  wife,  on  the  same  day,  executed  to  them  a  mortgage  on  the 
premises  described  in  the  mortgage  held  by  the  complainants. 
That  the  said  mortgage  was  acknowledged  January  5th,  1843, 
and  recorded  the  next  day. 

They  gay  that  when  they  received  the  said  mortgage  the  r«aid 
mortgagor  was  in  possession  and  occupancy  of  the  buildings 
which  were  erected  on  the  premises;  that  the  judgment  cred- 
itors had  not  filed  any  claim  under  the  acts  of  the  legislature  to 


SEPTEMBER  TERM,  1846.  489 

Ex'rs  of  Vandyne  v.  Vannera. 

secure  mechanics,  &c.,  nor  commenced  their  suits ;  and  that 
these  defendants,  having  neither  actual  nor  constructive  notice 
of  their  pretended  liens,  sold  their  goods  in  good  faith,  relying 
for  security  of  payment  on  the  value  of  the  premises  and  im- 
provements thereon  embraced  in  their  mortgage ;  and  they  sub- 
mit that  the  said  acts  do  not  create  a  lien  on  the  premises,  or 
any  part  thereof,  which,  under  the  circumstances  of  the  case, 
should  be  preferred  to  their  mortgage ;  that  their  mortgage  be- 
ing made  and  recorded  prior  to  any  act  done  by  those  defend- 
ants under  said  acts  of  the  legislature,  and  before  the  judgments 
in  favor  of  those  defendants  were  rendered,  their  mortgage  is 
valid  against  all  subsequent  judgment  creditors  and  all  claiming 
a  preference  by  virtue  of  said  acts  of  the  legislature  and  of  pro- 
ceedings subsequent  to  the  registry  of  their  mortgage;  and  they 
further  submit  that  if  the  defendants  who  claim  a  preference 
under  the  said  acts,  have  any  prior  liens  on  said  buildings,  such 
liens  are  confined  to  the  buildings,  and  do  not  extend  to  or  affect 
the  land  on  which  the  buildings  have  been  erected,  to  the  preju- 
dice of  prior  bonafide  mortgagees. 

And  they  further  submit  that  as  the  said  defendants  made 
their  election,  under  the  second  section  of  said  acts,  to  proceed 
for  the  recovery  of  their  demand  by  personal  action,  instead  of 
proceeding  by  scire  facias  to  enforce  their  liens,  they  have 
waived  their  preference,  and  were  not  authorized  to  issue  exe- 
cutions against  the  buildings  and  land  on  which  they  were 
erected,  so  as  to  claim  priority  over  them, 

The  answer  of  Evert  H.  Vanness  states  his  mortgage,  and 
that  it  was  recorded,  without  saying  when  ;  and  claims  that  it 
has  priority  over  all  other  encumbrances  except  that  of  the  com- 
plainants. This  mortgage  is  dated  January  7th,  1843. 

The  cause  was  brought  to  hearing  ou  the  bill  and  answers. 

P.  D.  Vroom,  for  the  mortgagees. 
H.  W.  Green,  for  the  mechanics. 

THE  CHANCELLOR.  The  controversy  is  between  the  mort- 
gagees holding  mortgages  subsequent  to  the  complainant-*' 
mortgage,  and  the  mechanics  claiming  liens,  under  the  statutes 

VOJL.  I.  2H 


490  CASES  IN  CHANCERY. 

Ex'rs  of  Vandyne  v.  Vanness. 

referred  to  in  their  answers,  for  work  and  labor  and  materials 
found  in  and  for  the  erection  of  the  buildings. 

The  first  section  of  the  act  provides  that  all  claims  for  such 
work  and  materials  shall  be  filed  in  the  office  of  the  clerk  of  the 
county,  within  six  months  from  the  time  the  work  is  done  or 
the  materials  are  furnished.  The  second  section  provides  that 
in  all  cases  of  lien  created  by  the  act,  the  person  having  a 
claim  filed  as  aforesaid,  may,  at  his  election,  proceed  to  recover 
it  by  personal  action  against  the  debtor,  or  by  scire  facias 
against  the  debtor  and  owner  or  owners  of  the  buildings;  and 
when  the  proceeding  is  by  scire  facias,  if  the  defendant  fail 
to  appear,  the  court  shall  render  judgment  as  in  other  cases  on 
writs  of  scire  facias;  but  if  he  appear,  he  may  plead  and 
make  defence,  and  the  like  proceedings  be  had  as  in  personal 
actions  for  the  recovery  of  debts;  and  upon  judgment  being 
rendered  thereupon,  execution  shall  issue  against  the  building 
and  land  on  which  the  same  is  erected,  subject  to  all  prior 
claims  as  aforesaid  ;  that  is,  in  the  language  of  the  first  section, 
all  prior  claims  on  mortgage  or  judgment  against  the  land-own- 
er on  the  land  on  which  the  building  is  erected,  and  prior  to  the 
erection  thereof.  The  act  creates  a  lien  for  the  materials  found 
for  and  the  work  done  in  erecting  the  building,  from  the  time 
of  the  material  found  or  the  work  done,  if  the  claim  is  filed 
within  six  months  from  that  time.  There  is  another  provision 
in  the  first  section  of  the  act,  that  no  such  demand  shall  remain 
a  lien  longer  than  two  years  from  the  commencement  of  the 
building,  unless  the  claim  be  filed  within  six  months  after  per- 
forming the  work,  or  furnishing  the  materials,  and  an  action 
for  the  recovery  of  the  same  be  instituted  within  one  year  after 
the  work  done  or  material  found. 

The  extent  of  the  lien,  as  to  the  subject  of  it,  is  shown  by 
the  mode  pointed  out,  in  the  act,  of  enforcing  it  at  law.  It  is 
to  be  enforced  at  law  by  judgment  for  the  claim  filed,  and  exe- 
cution against  the  building  and  laud  on  which  the  same  is 
erected.  The  lien,  therefore,  is  on  the  building  and  land  on 
which  it  is  erected. 

It  was  argued  that  proceeding  by  personal  action  against  the 
debtor  was  a  waiver  of  the  lien.  This  cannot  be  so,  consistent- 
ly with  the  provision  that  the  demand  shall  remain  a  lieu  for 


SEPTEMBER  TERM,  1846.  491 


Ex"  re  of  Vandyne  v.  Vanness. 


two  years,  if  the  claim  be  filed  within  six  months,  and  an  action 
for  the  recovery  of  the  same  be  instituted  within  a  year  after 
the  work  done  or  materials  found.  The  only  consistent  reading 
of  the  section  pointing  out  the  mode  of  enforcing  the  lien  at 
law  is,  that  the  person  having  a  claim  filed  as  aforesaid  may, 
at  his  election,  proceed  to  recover  it  by  personal  action  against 
the  debtor,  or  by  scire  facias  against  the  debtor  and  owner  of 
the  building,  and,  on  judgment  being  rendered  on  the  claim, 
in  either  mode  of  proceeding,  execution  shall  issue  against  the 
building  and  land  upon  which  the  same  is  erected,  subject  only 
to  such  prior  claims  as  are  mentioned  in  the  first  section. 

The  claims  of  the  mechanics,  in  this  case,  were  subsisting 
liens  at  the  filing  of  the  bill — nothing  had,  or  has  been  done  or 
omitted,  to  forfeit  or  bar  them — and  this  court  must  give  them 
effect  according  to  the  provisions  of  the  act.  If  there  should 
not  be  enough  to  pay  them  both,  after  paying  the  mortgage  of 
the  complainants,  they  must  pay  ratably. 

On  what  land  are  the  claims  liens?  The  act  says,  the  build- 
ing and  the  land  on  which  it  is  erected.  Is  it  only  the  land 
which  the  building  covers,  or  is  it  all  of  any  distinct  tract  of 
land  on  which  the  building  stands?  It  seems  to  me  it  must  be 
one  or  the  other.  If  it  be  not  confined  to  the  land  covered  by 
the  building — and  this,  I  think,  would  be  an  absurdity — it  must 
be  the  tract  on  which  the  building  stands,  for,  if  this  be  not  so, 
\ve  must  make  the  equally  absurd  supposition  that  the  legisla- 
ture intended  that  the  parties,  or  one  of  them,  or  the  court, 
should  determine  what  part  of  the  tract  should  be  subject  to  the 
lien,  that  is,  how  much  of  a  tract,  besides  the  foundation,  a 
house  shall  be  held  to  stand  upon. 

How  shall  the  property  be  sold?  If  the  whole  of  the  land 
mortgaged  to  the  complainants  will  not  bring  enough  to  pay 
them,  it  is  unimportant  to  the  subsequent  encumbrancers  how 
the  property  is  sold.  If  it  bring  more  than  the  first  encum- 
brance, the  building  must  be  supposed  to  contribute  to  such  sur- 
plus, and  such  surplus  should  go  to  pay  for  the  building.  The 
court,  on  general  principles,  might  order  the  property  sold  to- 
gether or  in  such  parcels  as  it  might  direct,  as  should  seem  most 
advantageous  for  the  encumbrancers.  It  seems  to  me  that  the 
court  can  act  on  no  other  principles  in  this  case,  and  that  no 


492  CASES  IN  CHANCERY. 

Ex'rs  of  Vandyne  v.  Vanness. 

advantage  could  result  to  the  subsequent  encumbrancers,  or  any 
of  them,  in  this  case,  from  the  adoption  of  any  other  principle 
or  mode  of  sale.  A  holds  a  mortgage  on  a  tract  of  ten  acres ; 
B,  a  carpenter,  builds  a  house  on  it,  and  acquires  a  lien  for  the 
amount  of  his  work,  on  the  building  and  land  on  which  it  is 
erected,  and  C  takes  a  subsequent  mortgage  on  the  whole.  I 
see  no  good  reason  why  the  whole  should  not  be  sold  together, 
and  the  proceeds  applied  to  the  encumbrances  according  to  their 
priority. 

True,  a  part  of  the  land,  not  including  the  house,  might 
bring  enough  to  satisfy  the  first  encumbrance.  This  would 
leave  the  residue  of  the  land,  including  the  house,  for  the  car- 
penter and  the  subsequent  mortgagee.  If,  in  this  state  of  things, 
the  subsequent  mortgagee  could  confine  the  carpenter  to  the 
house  and  the  land  it  covered,  the  residue  of  the  land  would  go 
to  pay  his  mortgage,  but  it  is  plain  this  would  sacrifice  the  car- 
penter's interest,  and  it  cannot  be  the  meaning  of  the  act. 

I  think  the  true  construction  of  the  act  will  appear  by  sup- 
posing that  no  lien  exists  on  the  whole  tract,  except  the  carpen- 
ter's lien  for  the  house  built  on  it.  In  that  case,  what  would  be 
the  extent  of  the  carpenter's  lien  on  the  land  on  which  the 
house  was  built?  I  think  it  would  extend  to  so  much  of  the 
land  as,  with  the  house,  would  pay  the  lien.  If  this  be  so, 
then,  in  the  case  put,  after  selling  so  much  of  the  land  aa 
would  pay  A's  mortgage,  the  residue  of  the  land,  with  the  house 
on  it,  might  as  wejl  be  sold  together.  If  it  brought  no  more 
than  enough' to  pay  the  carpenter's  lien,  the  subsequent  mort- 
gagee could  get  nothing ;  if  it  brought  more,  he  could  have  the 
surplus.  It  is  also  apparent,  from  this,  that  in  the  case  put,  the 
whole  tract  might  as  well  be  sold  together,  and  the  surplus, 
after  paying  A's  mortgage,  be  applied,  first,  to  pay  the  carpen- 
ter, and  the  surplus  beyond  that,  if  any,  to  the  subsequent 
mortgage. 

It  was  said,  in  argument,  that  the  carpenter  would  get  a  liea 
on  the  entire  tract  of  land,  as  security  for  a  house  he  might 
build  on  it.  I  see  no  reason  why  he  should  not,  in  good  sense, 
and  under  the  language  of  the  act,  have  a  lien  on  so  much  of 
the  land,  including  the  house,  as  will  pay  for  building  the 


SEPTEMBER  TERM,  1846.  493 

Wilson  v.  Ex'rs  of  Fisher. 

house ;  and  unless  you  can  confine  him  to  the  ground  covered 
by  the  house,  there  can  be  no  other  rule. 

In  the  case  in  hand,  I  am  of  opinion  that  the  claims  of  Schoon- 
maker  and  Morrell  &  Post  are  liens  on  the  buildings  and  on  the 
tract  on  which  they  were  erected,  or  so  much  thereof  as  will  be 
necessary  to  pay  them  ;  and  that  these  liens  are  prior  to  the 
mortgages  set  up  in  the  answers. 

Order  accordingly. 

CITED  in  Edwards  v.  Derrickson,  4  Dutch.  47-71. 


JOSEPH  D.  WILSON  v.  DAVID  FISHER  AND  GEOEGE  BOBBINS, 
EXECUTORS  OF  THE  WILL  OF  JACOB  FISHER,  DECEASED. 

1.  A  note  given  to  a  testator  in  his  lifetime  by  one  who  was  appointed  a  co- 
executor  of  his  will,  was  inventoried  by  the  two  executors  as  a  part  of  the 
assets  of  the  estate ;  and,  in  a  joint  account  settled  by  the  executors  in  the 
Orphans'  Court,  they  charge  themselves  with  cash  received  on  the  said  note 
in  full.     Held,  in  the  absence  of  any  explanation,  that  both  executors  were 
liable  to  the  residuary  legatees  for  the  whole  balance  struck  against  them  in 
the  said  joint  account. 

2.  A  note  given  by  one  of  the  said  executors  to  a  legatee,  on  account  of  hi« 
share  of  the  residue,  which  note  was  not  paid,  but  which  the  other  executors 
set  up  as  a  payment,  was  held  to  be  no  payment. 

3.  One  of  the  executors  paid  four  shares,  in  full,  to  four  of  five  residuary 
legatees,  and  a  part  of  the  fifth  share  to  the  other  legatee  ;  and  on  a  bill  filed 
by  the  latter  against  the  executors  for  the  residue  of  his  share,  set  up  that  he 
had  paid  out  all  he  had  in  his  hands  of  the  balance  found  by  the  said  joint 
account,  and  that  the  other  executor,  who  had  since  become  bankrupt,  had 
received  enough  of  the  said  balance  to  pay  what  remained  due  the  complain- 
ant.    Is  this  a  defence? 

4.  It  is  not  necessary  to  tender  to  executors  a  refunding  bond  before  filing  a 
bill  for  a  legacy.  

The  bill  was  exhibited  July  8th,  1845,  by  Joseph  D.  Wilson, 
against  David  Fisher  and  George  Robbins,  executors  of  the 
will  of  Jacob, Fisher,  who  died  February  1st,  1837,  to  recover 
from  the  executors  the  one- fourth  part  of  the  one-fifth  part  of 
the  residue  of  the  personal  estate  of  the  testator  after  paying 
debts  and  legacies;  the  said  residue  having  been  bequeathed 


494  CASES  IN  CHANCERY. 

Wilson  v.  Ex'rs  of  Fisher. 

by  the  testator  to  his  five  children,  in  equal  parts,  and  the  com- 
plainant being  one  of  four  children  of  Margaret,  a  daughter  of 
the  testator,  who  died  since  the  testator. 

The  bill  states  that  the  executors,  in  April,  1842,  settled  their 
account  of  the  estate  in  the  Orphans'  Court  of  Monmouth  county, 
in  which  they  charge  themselves  with  $14,152. 57J,  and  credit 
themselves  with  disbursements,  $200.51,  and  admit  a  balance  in 
their  hands  of  $13,832.06|,  after  paying  all  the  debts  and  specific 
legacies,  to  be  disposed  of  agreeably  to  the  will.  That  the  said 
account  was  the  joint  account  of  the  executors,  and  was  sworn 
to  by  each  of  them,  and  was  reported  by  the  surrogate  of  Mon- 
inouth  to  the  Orphans'  Court  of  the  county;  and  that  the  said 
court,  in  April,  1842,  decreed  that  the  same  be  allowed  in  all 
things. 

The  defendants  answered  separately. 

David  Fisher,  iu  his  answer,  admits  the  account  exhibited 
and  settled  by  the  executors  in  the  Orphans'  Court,  as  stated  in 
the  bill ;  and  says  that,  by  joining  with  his  co-executor  in  having 
the  account  so  stated  and  reported  by  the  surrogate,  it  was  not 
bis  intention  to  make  himself  chargeable  for  any  more  of  the 
assets  than  had  come  to  his  hand,  and  that  he  was  so  advised  by 
his  counsel  and  believed,  when  he  joined  in  the  account ;  it  being 
necessary  to  have  their  accounts  so  settled,  to  ascertain  the  gen- 
eral balance,  to  determine  the  respective  shares  of  the  residuary 
legatees.  He  says  that  $11,158.81  of  the  balance  of  the  said 
amount  was  received  by  him,  and  that  it  was  fully  laid  out  and 
disbursed  to  those  entitled  to  receive  it  under  the  will ;  and  that 
the  residue  of  said  balance,  viz.,  $2773.25,  was  received  by 
Robbins  ;  and  that,  of  that  sum,  there  is  yet  in  Robbins'  hands, 
as  he  believes,  some  $1200  to  be  paid  out  and  distributed  under 
the  will. 

That  he  and  Robbins  have,  at  all  times,  kept  separate  ac- 
counts of  the  assets  which  have  come  to  their  hands  respect- 
ively, and  taken  separate  vouchers  for  their  respective  disburse- 
ments; and  that  he  has  fully  paid  out  and  disbursed  all  that 
came  to  his  hands.  That,  on  the  8th  April,  1839,  he  paid  to 
the  complainant  $412,  in  part  payment  of  his  legacy,  and  took 
his  receipt  therefor.  That  the  complainant  has  not,  nor  has 
auy  person  for  him,  made  any  demand  of  him  for  any  balance 


SEPTEMBER  TERM,  1846.  495 

Wilson  v.  Ex're  of  Fisher. 

due  the  complainant  on  his  legacy,  or  tendered  any  refunding 
bond  to  him,  or  made  any  offer  of  two  sufficient  securities,  as 
required  by  law,  before  the  filing  of  the  bill,  or  at  any  other 
time;  and  he  submits  that  the  bill  should  be  dismissed  as 
against  him  ;  that  after  the  accounts  were  settled,  he  paid  out 
the  balance  of  the  estate  in  his  hands  to  such  of  the  legatees 
as  demanded  the  same  of  him  and  tendered  to  him  the  sureties 
required  by  law. 

That  Robbins  had  sufficient  assets  in  his  hands  to  pay  the 
balance  of  complainant's  legacy,  and  that  he  expressly  retain- 
ed it  tor  that  purpose;  and  that  when  the  complainant,  in  the 
fall  of  1842,  called  on  him,  this  defendant,  to  learn  something 
in  reference  to  the  estate,  he  told  the  complainant  he  had  dis- 
bursed all  the  assets  that  came  to  his  hands,  and  that  Robbins 
had  the  funds  to  pay  the  balance  due  him. 

The  answer  of  Robbins,  the  other  executor,  admits  that  he 
became  possessed  of  personal  estate,  to  the  amount  of  the  two 
several  sums  of  $2773.25  and  $296.12;  and  says  that  he 
paid,  out  of  the  same,  in  the  administration  of  the  estate, 
$1831.68,  including  his  commissions;  leaving  a  balance  in  his 
hands,  unapplied,  and  for  which  he  is  accountable,  of  $1237.69. 
That  he  is  insolvent,  and  -that  on  the  8th  February,  1845,  he 
was  declared  a  bankrupt,  and  has  obtained  a  certificate  of  his 
discharge.  He  says  that  in  joining  in  the  accounts  stated  and 
reported  by  the  surrogate,  it  was  not  his  intention,  nor,  as  he 
believes,  the  intention  of  his  co-executor,  to  make  themselves 
severally  chargeable  for  more  of  the  assets  than  had  come  to 
their  hands  severally  ;  and  that  he  was  so  advised  by  his  coun- 
sel and  believed,  when  he  joined  in  the  account ;  stating  the 
olject  of  their  joining  to  have  been  as  stated  by  Fisher  in  his 
answer. 

He  says  that  after  Fisher  had  disbursed  what  was  in  his 
hands,  he,  Robbins,  had  $1237.69  in  his  hands,  which  was 
sufficient  to  pay  the  balance  due  the  complainant  and  the  bal- 
ance due  the  other  children  of  Margaret ;  and  that  he  took  up- 
on himself  and  promised  to  do  it;  but  that  he  is  unable  to  do 
it;  that  he  and  his  co-executor  have  at  all  times  kept  separate 
accounts  and  taken  separate  vouchers.  He  denies  demand  or 
tender  of  refunding  bond ;  and  says  that  no  decree  of  distribu- 


496  CASES   IN   CHANCERY. 

Wilson  v.  Ex'rs  of  Fisher. 

tion  has  been  obtained  against  him  and  his  co-executor  in  the 
said  Orphans'  Court,  showing  what  portion  of  the  personal  es- 
tate came  to  the  hands  of  him  and  his  co-executor,  or  what  were 
their  respective  disbursements. 

Replications  were  filed  and  proofs  taken. 

P.  Vredenburgh,  for  the  complainant. 

D.  Ryall  and  P.  D.  Vroom,  for  defendants.  They  cited  1 
HalsLRep.  432;  Elmer's  Dig.  311,317  ;  1  P.  Wms.  81;  2  Fes., 
Jr.,  678 ;  4  Ibid.  596  ;  4  Johns.  Rep.  23 ;  7  Johns.  Ch.  Rep. 
17 ;  Bac.  Ab.,  title  "  Executors  and  Administrators,"  D. 

THE  CHANCELLOR.  Three  joint  accounts  have  been  stated 
by  the  executors  and  presented  to  the  Orphans'  Court  and  al- 
lowed ;  the  first  in  January,  1839  ;  the  second  in  April,  1841 ; 
and  the  third -in  April,  1842.  In  each  the  balance  found  in  the 
hands  of  the  executors  is  stated  thus  :  "  Balance  in  hands  of  ac- 
countants, to  be  disposed  of  agreeably  to  will  of  testator." 

The  balance  found  in  their  hands  by  the  last  account  was 
$13,932.06|. 

Bobbins  was,  in  February,  1843;  decreed  to  be  bankrupt. 
The  answer  would  seem  to  say  that  $1237.69  of  the  balance 
of  the  said  joint  account  of  the  executors  was  in  the  hands  of 
Robbing.  Fisher. paid  in  full  four  of  the  five  residuary  legatees, 
each  entitled  to  a  fifth  of  the  balance  of  the  said  joint  account, 
and  more  than  half  of  the  remaining  fifth. 

If  $1237.69,  or  any  other  portion  of  the  balance  of  the  joint 
account  of  the  executors  was  in  the  hands  of  Robbins,  can 
Fisher,  after  paying  four  shares  in  full,  relieve  himself  from 
the  payment  of  the  other  share  by  paying  half  of  it  and  show- 
ing that  he  has  no  more  of  the  balance  of  the  joint  accounts  in 
his  hands,  and  that  the  other  executor  had  received  the  residue 
of  that  balance? 

This  is  a  question  which  should  be  well  considered  before 
deciding  it  in  the  affirmative.  It  strikes  me  it  would  be  a  dan- 
gerous doctrine.  But  I  am  not  satisfied  that  any  part  of  t.he 
balance  found  by  the  joint  account  in  the  hands  of  the  execu- 
tors can,  under  the  pleadings  and  proofs  in  the  case,  be  consid^ 


SEPTEMBER  TERM,  1846.  497 

Wilson  v.  Ex'rs  of  Fisher. 

ered  to  be  in  the  hands  of  Robbins,  and  not  in  the  hands  of 
Fisher.  A  note  of  Robbins  to  the  testator,  of  about  $1500, 
was  included  in  the  inventory.  In  the  second  account  of  the 
executors,  they  charge  themselves,  *'  April  8th,  1839,  cash  re- 
ceived of  George  Robbins,  on  account  of  his  note,  $600,"  and, 
"April  Gih,  1840,  cash  received  of  George  Robbins,  in  full  of 
his  note,  $984.50."  I  also  find  that  certain  debts  due  the 
estate,  and  which  are  included  in  the  inventory,  amounting,  in 
all,  at  their  appraised  value,  to  $1471.46,  are  not  included  in  the 
balance  struck  in  the  joint  account,  and  that  no  allowance  is 
prayed  for  them  as  bad  or  doubtful  debts.  Whether  Robbins 
had  received  them,  and  Fi.sher  was,  therefore,  unwilling  to  have 
them  charged  in  the  joint  account,  does  not  appear.  The 
charging  themselves,  in  a  joint  account,  with  cash  received  of 
Robbins,  in  full  of  his  note  due  the  estate,  no  explanation  of  the 
charge  being  made  in  the  case,  makes  both  of  the  executors 
chargeable  to  the  legatees  for  that  amount,  and,  so  fa'r  as  it  con- 
stitutes a  part  of  the  balance  struck  in  the  joint  account,  Fisher 
is  liable  for  it. 

In  view  of  this,  and  of  the  fact  that  $1471.46  of  the  assets 
of  the  estate  is  uot  included  in  the  balance  struck  against  the 
executors,  and  may,  for  aught  that  appears,  be  in  the  hands  of 
Robbins,  both  the  answers  may  be  true,  in  the  sense  in  which 
they  have  been  sworn  to,  and  yet  the  whole  of  the  balance  of 
the  accounts,  as  stated  and  allowed,  be  in  the  hands  of  Fisher, 
churning  him  with  the  debt  acknowledged  iu  the  joint  account, 
to  have  been  received  from  Robbins. 

Fisher,  in  his  answer,  says  that  on  the  8th  of  April,  1839, 
he  paid  to  the  complainant  $412,  in  part  payment  of  his  share 
of  the  residue  of  the  personal  estate,  and  took  his  receipt  there- 
for. Two  hundred  dollars  of  this  $412  consisted  of  a  note 
which  Fisher  procured  to  be  given  by  Robbins  to  complainant, 
and  which  was  never  paid  ;  and  Fisher  at  that  time  had,  or 
must  be  considered  to  have  Ivad  in  hand — he  being  liable,  as 
before  observed,  for,  or  having  actually  received  the  amount  of 
RobbinV  note  due  the  estate — the  $200  for  which,  instead  of 
>aying  it  iu  money  to  the  complainant,  he  got  Robbins  to  give 
.is  note  to  the  complainant.  This  note  was  no  payment  by 
..ther  of  the  defendants  to  the  complainant,  and  the  receipt  taken 


498  CASES  IN  CHANCERY. 

Ex'r  of  Cooper  v.  Cooper. 

by  Fisher  from  the  complainant,  for  $412,  is,  therefore,  good 
only  for  $212. 

That  no  refunding  bond  was  tendered  before  filing  the  bill,  is 
no  defence  in  this  court.  The  court  can  provide,  in  the  decree, 
for  the  giving  of  a  refunding  bond. 

I  am  of  opinion  that  both  the  executors  are  liable  to  the  com- 
plainant for  the  balance  remaining  unpaid  to  him  of  his  share 
of  the  residue  of  the  personal  estate  of  the  testator,  according  to 
the  amount  of  the  said  residue  as  ascertained  by  the  said  joint 

account  of  the  executors. 

Decree  accordingly. 


THE  EXECUTOR  OF  NATHAN  COOPER  v.  PRUDENCE  COOPER 
AND  OTHERS. 

1.  J.  C.  died  March  15th,  1833,  leaving  a  will,  by  which  he  ordered  all  his 
debts  to  be  paid,  and  gave  and  bequeathed  t>>  his  widow  all  his  estate,  real 
and  personal,  during  her  natural  life  or  widowhood,  and  appointed  her  sole 
executrix  thereof,  the  will  containing  no  devise  or  bequest  of  the  estate  after 
her  death.     The  testator  left  a  grandson,  his  only  heir-at-law.     The  widow 
and  the  grandson,  and  his  family,  occupied  the  dwelling-house  and  lands,  and 
converted  all  the  personal  property  to  their  own  use.     On  the  24th  of  July, 
1831  the  widow,  and  the  grandson  and  his  wife,  conveyed  all  the  real  estate 
to  T  B.  S.    On  a  bill  by  a  creditor  of  the  testator  attacking  the  bona  fides  of 
the  sale,  and  the  answer  and  proofs  in  the  cause,  the  deed  was  declared  void, 
and  the  lands  held  liable  for  the  complainant's  debt. 

2.  On  bill  filed  by  a  creditor  of  a  testator,  by  bond  signed  by  the  testator 
and  a  surety,  to  set  aside  a  sale  of  lands  made  by  the  executor  and  devisee, 
and  to  subject  the  lands  to  the  payment  of  the  bond  debt,  held  that  the  surety 
was  not  a  nec«wsary  party  to  the.  suit. 


John  Cooper  died  March  15th,  1833,  leaving  Prudence 
Cooper,  his  widow,  and  John  S.  Cooper,  his  grandson  and  only 
heir-at-law,  and  leaving  a  will,  by  which  he  ordered  that  all 
his  just  debts  and  funeral  expenses  should  be  duly  paid  and 
satisfied  as  soon  as  conveniently  could  be  after  his  decease,  and 
gave  and  bequeathed  to  the  said  Prudence  all  his  real  and  per- 
Bouul  estate  during  her  natural  life,  or  as  long  as  she  should  re- 


SEPTEMBER  TERM,  1846.  499 

Ex'r  of  Cooper  v.  Cooper. 

main  his  widow,  and  appointed  the  said  Prudence  sole  execu- 
trix of  his  will,  "giving  or  granting  her  full  power  and  autho- 
rity to  act  in  and  about  the  premises."  At  the  time  of  his  death 
he  was  seized  in  fee  of  certain  lands  in  Morris  county,  de- 
scribed in  the  bill  of  complaint  in  this  cause,  and  therein  stated 
to  be  of  the  value  of  $600,  and  possessed  of  some  personal 
estate,  but  to  what  amount  the  complainant  says  he  cannot 
state.  It  would  seem  from  the  pleadings  in  the  cause  that  the 
value  of  the  personal  estate  was  about  $300. 

At  the  time  of  the  death  of  John  Cooper,  the  executor  of 
Nathan  Cooper  held  the  joint  and  several  bond  of  John  Cooper 
and  Daniel  Horton,  dated  June  2d,  1812,  conditioned  for  the 
payment  to  the  said  Nathan,  his  executors,  &c.,  of  $300,  with 
interest,  in  one  year,  on  which  are  several  endorsements  of  in- 
terest received,  the  last  of  which  is  a  receipt  for  one  year's  in- 
terest, dated  June  3d,  1831.  After  the  death  of  John  Cooper, 
Prudence,  his  widow,  and  John  A.  Cooper,  his  heir-at-law,  with 
his  family,  occupied  the  lands  and  dwelling-house  of  the  testa- 
tor, John  A.  Cooper  and  his  family  living  with  the  widow,  and 
the  personal  estate  of  the  testator,  consisting  of  household  fur- 
niture and  stock  on  the  farm,  being  used  in  the  family. 

On  the  24th  July,  1834,  Prudence  Cooper  and  John  A.  Cooper 
and  Mary,  his  wife,  by  their  deed  of  that  date,  conveyed  all 
the  real  estate  of  which  the  said  testator  died  seized  to  Thomas 
B.  Stout,  for  the  consideration  expressed  in  the  deed  of  $500, 
the  deed  giving  a  particular  description  of  the  lands,  and  adding, 
after  the  description,  this  clause :  "  being  the  whole  of  the  lands 
of  the  said  deceased,  according  to  the  last  will  and  testament 
of  the  said  John  Cooper,  deceased." 

On  the  9th  October,  1834,  Nathan  A.  Cooper,  executor,  &c., 
of  Nathan  Cooper,  deceased,  exhibited  his  bill  on  behalf  of 
himself  as  such  executor  and  of  all  other  creditors  of  John 
Cooper,  deceased,  who  shall  come  in  and  seek  relief  by  and  con- 
tribute to  the  expense  of  the  suit,  against  Stout,  Prudence 
.Cooper  and  John  A.  Cooper,  stating,  among  other  things,  that 
Prudence,  combining  with  the  said  John  A.,  had  converted  and 
disposed  of  all  the  personal  property  of  the  testator  to  her  own 
use,  without  accounting  in  any  way  for  the  same;  and  that 
there  were  no  assets,  real  or  personal,  of  the  testator  remaining, 


500  CASES  IN  CHANCERY. 

Ex'r  of  Cooper  v.  Cooper. 

except  the  real  estate  described  in  the  bill ;  that  Prudence  and ' 
John  A.  are  insolvent;  and  that  for  the  purpose  of  defrauding 
the  complainant  they  did,  by  their  deed  dated  July  24th,  1834, 
convey  all  the  said  lands  to  Stout;  that  before  and  at  the  time 
of  the  conveyance,  Stout  had  full  knowledge  of  the  debt  due 
the  complainant,  and  that  the  land  so  conveyed  to  him  was  the 
only  property  left  of  the  estate  of  the  said  testator  out  of  which 
the  complainant  could  collect  his  debt ;  that,  as  the  complain- 
ant is  informed  and  believes,  it  was  talked  of  and  contrived 
between  the  parties  to  said  deed,  before  and  at  the  time  of  its 
execution,  that  by  means  of  the  said  conveyance  the  complain- 
ant would  be  defeated  of  collecting  his  debt  out  of  the  estate  of 
John  Cooper,  deceased. 

The  bill  charges  that  Stout  took  the  deed  with  full  know- 
ledge of  the  will,  and  that  the  conveyance  was  made  with  a 
secret  understanding  with  Stout  for  the  purpose  of  defeating  the 
creditors  of  John  Cooper,  the  said  testator;  that,  as  the  com- 
plainant is  informed  and  believes,  no  part  of  the  consideration 
money  was  paid,  and  that  it  all  still  remains  in  the  hands  of 
Stout;  that  about  September  1st,  1834,  the  complainant  gave 
notice  to  Stout  not  to  pay  over  the  consideration  money  to  Pru- 
dence and  John  A.,  and  requested  that  it  might  be  applied  to- 
wards discharging  the  debt  due  the  complainant. 

The  bill  prays  that  the  said  debt  may  be  decreed  to  be  a  lien 
on  the  lands  ;  and  that  the  said  deed  may  be  declared  to  be  void 
as  against  the  creditors  of  John  Cooper,  deceased,  and  that  the 
said  lands  may  be  sold  to  pay  the  said  debt  and  such  other 
debts,  &c. ;  or,  if  the  court  should  think  it  proper  to  confirm  the 
deed  to  Stout,  that  Stout  may  be  decreed  to  account  for  and  pay 
over  the  fair  value  of  the  lands  to  the  complainant  and  such 
other  creditors  as  may  be  entitled  to  relief  under  the  bill, 
towards  their  claims,  and  that  Stout  may  be  enjoined  from  pay- 
ing to  Prudence  or  John  A.  Cooper  any  moneys  that  may  still 
be  due  from  him  on  account  of  said  lands,  and  that  Stout,  Pru- 
dence and  John  A.  Cooper  may  be  enjoined  from  making  any 
further  conveyance  of  the  lands. 

The  injunction  was  granted. 

Stout  put  in  his  separate  answer.  He  admits  that  he  has 
lately  heard  of  the  debt  mentioned  in  the  Mil,  and  that  the 


SEPTEMBER  TERM,  1846.  501 

Ex'r  of  Cooper  v.  Cooper. 

principal,  with  some  interest  thereon,  is  still  due.  He  admits 
that  John  Cooper  died  seized  of  several  tracts  of  land,  worth 
about  $500,  which  he  believes  to  be  a  full,  adequate  and  suffi- 
cient price  for  the  same,  and  possessed  of  some  personal  pro- 
perty. He  denies  that  Prudence  and  John  A.  Cooper  have  con- 
tinued to  receive  the  rents,  issues  and  profits  for  any  longer  time 
than  until  the  sale  to  him,  on  or  about  July  24th,  1834,  except 
the  use  of  the  house  and  barn  and  the  privilege  of  getting  wood 
for  fuel,  as  his  tenants;  and  says  that  the  profits  of  the  prem- 
ises and  the  crops  raised  on  the  same  have  been  exclusively  in 
him  and  his  tenant,  for  his  own  use,  without  the  control  or  in- 
terference of  the  said  Prudence  or  John  A.  Cooper.  That  as  to 
the  allegations  of  the  bill  respecting  the  conversion  of  the  assets 
by  Prudence  and  John  »A.  Cooper,  the  deficiency  of  assets,  the 
insolvency  of  said  Prudence  and  John  A.  Cooper,  and  their 
having  promised  to  pay  said  debt,  and  their  acknowledging 
that  the  real  estate  was  bound  for  it  in  their  hands,  he  has  no 
particular  information  other  than  that  contained  in  the  bill. 

That  on  or  about  July  24th,  1834,  he  bought  the  premises 
of  Prudence  and  John  A.  Cooper,  by  deed  of  that  date,  duly 
acknowledged  and  recorded,  for  the  consideration  of  $500  paid 
and  secured  to  be  paid  to  said  Prudence  and  John  A.  Cooper; 
that  this  was  the  full  value  of  the  premises,  and  that  the  sale 
thereof  was  a  fair,  open  and  bona  fide  sale,  and  with  no  view 
or  intent  on  his  part  to  defraud  the  creditors  of  the  said  Pru- 
dence and  John  A.  Cooper,  or  either  of  them,  or  the  creditors 
of  said  testator;  that  the  $500  was  in  part  paid,  and  the  re- 
mainder secured  to  be  paid  as  follows  :  on  the  sale  being  made 
he  drew  three  notes,  one  dated  July  24th,  1834,  to  Prudence 
Cooper,  for  $100,  payable  one  day  after  date,  which  was,  on 
the  day  it  became  due,  fully  satisfied,  paid  off  and  discharged 
to  said  Prudence  ;  and  a  note  drawn  upon  said  sale  and  dated 
by  mistake  July  25th,  1834,  but  intended  for  the  24th,  in  favor 
of  Prudence  and  John  A.  Cooper,  for  $200,  payable  thirty  days 
after  date,  with  interest,  which  note,  with  the  interest  thoreon, 
was  by  him  fully  and  fairly  also  paid  off  and  satisfied  to  John 
A.  Cooper,  on  the  26th  of  August,  1834,  and  the  two  said  notes 
by  them  given  up  to  him  and  now  in  his  possession,  with  the 
receipts  and  acknowledgments  of  payment  endorsed  thereon 


502  CASES  IN  CHANCERY. 

Ex'r  of  Cooper  v.  Cooper. 

may  more  fully  appear;  the  remaining  note  was  dated  July 
24th,  1834,  drawn  in  favor  of  Prudence,  payable  eight  months 
from  date,  with  interest,  for  §200,  on  which  he  did,  on  the 
30th  of  August,  1834,  pay  to  Prudence  $127,. 65,  which  is  or 
ought  to  have  been  credited  thereon,  which  note  still  remain.s 
in  the  custody  of  said  Prudence,  unless  she  has  assigned  it ;  so 
that  on  the  30th  August,  1834,  he  had  paid  to  Prudence  and 
John  A.  Cooper  the  purchase  money  for  the  premises,  except 
about  $72.35  and  a  small  amount  of  interest  thereon,  which 
still  remains  in  his  hands  unpaid,  in  obedience  to  the  order  of 
this  court. 

That  immediately  after  the  execution  of  said  deed  he  entered 
into  possession  of  the  premises,  put  a  tenant  in  possession  of 
part  thereof  under  him,  and  has  taken  the  rents,  issues  and 
profits  thereof  to  his  own  exclusive  benefit,  except  the  house 
and  barn,  which  he  has  rented  to  Prudence  and  John  A.  Cooper 
for  a  valuable  consideration,  with  privilege  of  fuel,  as  after 
stated,  without  any  bargain  or  understanding  with  said  Pru- 
dence or  John  A.  Cooper  that  the  sale  was  collusive,  fraudulent, 
or  a  cover  from  the  creditors  of  the  said  Prudence  and  John  A. 
Cooper,  or  of  either  of  them,  or  of  their  testator,  John  Cooper, 
or  that  they  were  to  receive  any  advantage  from  said  sale  ex- 
cept the  purchase  money. 

He  denies  that  at  the  time  of  the  conveyance  of  the  premises 
to  him,  or  of  the  agreement  for  the  sale,  he  knew  of  the  said 
debt  from  said  John  Cooper,  deceased,  to  the  complainant  as 
executor  of  Nathan  Cooper,  or  that  the  premises  conveyed  to 
him  were  the  only  assets  out  of  which  said  debt  could  be  paid. 
He  denies  that  there  was  any  such  conversation  or  understand- 
ing between  him  and  Prudence  and  John  A.  Cooper,  or  either 
of  them,  at  the  time  of  the  execution  of  the  deed  or  at  any 
other  time,  about  defeating  the  complainant  of  recovering  said 
debt  by  means  of  said  sale,  and  that  such  sale  was  for  any  such 
purpose  as  is  pretended  in  the  bill ;  and  he  says  he  is  a  bona 
fide  purchaser  of  the  premises  for  a  full,  fair  and  valuable  con- 
sideration, without  any  notice  of  the  demand  now  set  up  by  the 
complainant  in  his  bill. 

He  says  that  shortly  after  said  conveyance  to  him,  to  wit,  on 
or  about  July  28th,  1834,  he  entered  into  articles  with  said 


SEPTEMBER  TERM,  1846.  503 

Ex'r  of  Cooper  v.  Cooper. 

Prudence  and  John  A.  Cooper,  under  seal,  dated  the  day  and 
year  last  mentioned,  whereby,  in  consideration  of  fifteen  dollars, 
he  let  to  them  the  house  and  barn  on  the  premises,  with  the 
privilege  of  using  the  old  wood  that  had  fallen  down  and  re- 
mained on  the  lot  below  the  house,  to  use  as  firewood,  till  the 
1st  of  April,  1835;  and  that  the  said  Prudence  and  John  A. 
did,  by  said  articles,  promise  and  agree  to  yield  up  possession 
of  said  house  and  barn  on  the  1st  of  April,  1835,  in  as  good 
repair  as  when  they  leased  it,  fire  excepted  ;  and  he  says  that, 
except  the  use  of  said  house  and  barn  and  the  said  privilege, 
neither  Prudence  nor  John  A.  Cooper  has  or  has  had  any  con- 
trol over  or  interest  in  the  premises  since  the. sale  to  him  on  the 
said  24th  July,  1834  ;  and  that  since  the  said  1st  of  April,  1835, 
he  has  leased  the  house  and  the  whole  premises  to  one  Thomas 
Bowman,  who  now  has  possession  of  the  same ;  and  he  says 
that  he  denies  that  there  was  any  agreement  or  understanding, 
at  the  time  of  the  sale  or  at  any  other  time,  by  which  he  was  to 
take  the  premises  subject  to  the  said  debt,  or  any  other  debt,  but 
that  the  sale  was  absolute  and  unconditional,  without  any  reser- 
vation or  secret  trust  whatever. 

He  submits  that  by  no  construction  of  the  will  is  he,  a  bona 
fide  purchaser,  subject  to  the  payment  of  the  debts  of  the  testa- 
tor;  and  that  it  is  manifest,  from  the  whole  will,  that  no  lien  is 
created  thereby  which  can  or  ought  to  attach  on  his  estate. 

He  admits  that,  on  or  about  September  1st,  1834,  he  received 
a  notice  from  the  complainant,  forbidding  him  to  pay  over 
any  moneys  that  then  were  or  might  be  due  from  him  to  Pru- 
dence and  John  A.  Cooper,  or  either  of  them,  on  account  of  any 
lands  that  belonged  to  John  Cooper,  deceased,  and  that  had 
been  bought  by  him  of  Prudence  and  John  A.  Cooper ;  and  he 
offers  to  pay  into  court  the  said  sum  of  $72.35,  and  the  interest 
thereon,  which  was  all  the  money  due  on  account  of  said  sale 
when  he  received  the  notice,  and  still  remains  due,  to  be  dis- 
posed of  by  the  court. 

He  submits  that  all  the  matters  complained  of  are  matters 
which  may  be  determined  at  law,  and  with  respect  to  which 
the  complainant  is  not  entitled  to  any  relief  in  this  court;  the 
complainant  not  having  any  lien  for  the  said  debt  on  the  said 
laud  since  the  alienation  thereof  to  him ;  aud  he  hopes  he  shall 


504  CASES  IN  CHANCERY. 

Ex'r  of  Cooper  v.  Cooper. 

have  the  same  benefit  of  this  defence  as  if  he  had  demurred  to 
the  bill. 

Prudence  and  John  A.  Cooper  put  in  their  joint  and  separate 
answer.  They  admit  the  giving  the  bond  as  stated  in  the  bill, 
and  that  the  principal  of  the  bond  and  some  interest  thereon  is 
still  due,  but  what  amount  they  cannot  say  ;  and  that  John 
Cooper  died  seized  of  several  tracts  of  land,  worth  about  $500, 
and*  possessed  of  some  personal  property,  worth  about  $300. 

They  admit  that  they  continued  to  receive  the  rents  and 
profits  till  April  1st,  1835,  and  also  that  it  was  the  express 
agreement  between  Stout  and  them  that  the  profits  of  the 
premises  and  the  crops  should  be  exclusively  in  them,  for  their 
benefit,  until  April  1st,  1835. 

They  admit  that  Prudence  has  converted  and  disposed  of  all 
the  personal  estate,  and  that  they  are  insolvent,  not  having 
property  enough  to  pay  their  debts. 

They  admit  that  by  deed  of  July  24th,  1834,  for  $500  prom- 
ised to  be  paid  them  by  Stout,  they  conveyed  the  lands  to  him. 
That  Stout  promised  to  pay  them  $100  at  the  execution  of  the 
deed,  $200  in  eight  months,  and  $200  in  one  year  thereafter. 
That  he  did  not  pay  the  $100  at  the  execution  of  the  deed,  nor 
lias  he  since  paid  it,  but  that  he  paid  to  Prudence,  in  cash  and 
store  trade,  at  different  times,  in  all  about  $40;  and  also  that 
he  wanted  to  offset  a  demand  he  had  against  John  A.  Cooper, 
of  about  $47,  leaving  a  balance  of  about  $13,  of  the  $100, 
yet  due.  That  he  never  gave  a  note  for  the  $100,  or  any  part 
of  it,  but  refused  to  do  so.  That  on  the  day  of  the  sale  he 
gave  two  notes  for  $200  each,  one  payable  in  eight  months, 
and  the  other  in  one  year.  That  after  the  subpoena  in  this  cause 
was  served  on  the  defendants,  Stout  called  on  Prudence  and 
requested  her  to  give  him  a  receipt  for  some  money,  and  to  let 
him  have  one  of  the  said  $200  notes,  promising  to  return  it  and 
give  up  the  said  receipt,  saying  he  would  yet  pay  her  all  the 
money;  that  he  only  wanted  to  use  them  for  the  purpose  of 
filing  in  chancery  on  Cooper's  bill.  That  he  has  not  paid  any 
part  of  the  $400  mentioned  in  the  notes,  nor  has  he  returned 
the  said  note,  or  the  said  receipt,  but  has  since  promised  John 
A.  Cooper  the  whole  of  the  money  if  he  would  not  come  ( ut 
against  him. 


SEPTEMBER  TERM,  1846.  505 

Ex'r  of  Cooper  v.  Cooper. 

They  admit  that,  at  the  time  of  the  conveyance  to  Stout,  and 
at  the  time  of  the  agreement  for  the  sale,  Stout  knew  of  the  said 
debt  due  on  said  bond  or  otherwise  from  John  Cooper,  deceased, 
and  that  the  lands  so  conveyed  to  him  were  the  only  assets  out 
of  which  it  could  be  paid  ;  and  that  it  was  mentioned  and  con- 
trived between  them  and  Stout,  before  and  at  the  time  of  exe- 
cuting the  deed,  as  charged  in  the  bill. 

They  admit  and  say  that  the  receipt  given  by  Prudence  to 
Stout  was  dated  some  time  previous  to  the  time  it  was  given, 
and  that  Stout  said  it  must  be  so  to  make  it  appear  that  the 
money  was  paid  before  the  notice  of  the  injunction  was  served. 

Testimony  was  taken,  and  the  cause  brought  to  hearing  on 
the  pleadings  and  proofs. 

H.  W.  Green  and  P.  D.  Vroom,  for  the  complainant. 
J.  «/.  Scofield  and  B.  Williamson,  for  the  defendants. 

THE  CHANCELLOR.  So  far  as  relates  to  the  defendants,  Pru- 
dence and  John  A.  Cooper,  the  cause  is  free  from  difficulty. 
Prudence  was  devisee  and  legatee  for  life  or  widowhood,  of  the 
whole  estate,  real  and  personal,  and  executrix  of  the  will.  If 
she,  the  executrix,  instead  of  applying  the  personal  estate  to  the 
payment  of  the  debts,  converted  it  to  her  own  use,  the  court  could 
have  no  hesitation  in  subjecting  her  interest  in  the  real  estate 
under  the  will  of  which  she  was  executrix,  to  the  payment  of 
the  debts  which  she  ought  to  have  paid  out  of  the  personal 
property. 

John  A.  Cooper,  as  heir-at-law  of  John  Cooper,  deceased,  is 
entitled  to  the  remainder  in  the  real  estate  of  said  deceased,  after 
the  life  estate  therein  given  by  the  will  to  Prudence  Cooper ; 
and  on  the  death  of  Prudence  would,  as  next  of  kin  to  the  tes- 
tator, be  entitled  to  the  personal  estate  that  remained  after  the 
payment  of  the  debts  of  John  A.  Cooper,  deceased. 

John  A.  Cooper  must  be  taken,  from  his  answer,  to  have  con- 
nived at  or  consented  to  the  conversion  by  the  executrix  to  her 
own  use  of  the  personal  estate,  and  to  have  joined  in  the  deed  to 
Stout  for  the  purpose  of  putting  the  real  estate  beyond  the  reach 
of  the  creditors  of  the  testator. 

VOL.  i.  2 1 


506  CASES  IN  CHANCERY. 

Ex'r  of  Cooper  v.  Cooper. 

In  reference  to  Stout,  so  far  as  the  consideration  money  re- 
mains unpaid  by  him  to  the  grantors  in  the  deed,  it  is  a  fit  case 
for  the  interposition  of  this  court  to  prevent  it  from  going  into 
the  hands  of  Prudence  and  John  A.  Cooper,  who  admit  them- 
selves to  be  insolvent. 

But  the  case  opens  a  wider  range  of  inquiry.  Several  ques- 
tions were  started  in  the  argument,  on  which  I  shall  do  no  more 
than  intimate,  shortly,  my  impressions,  as  I  think  the  case  may 
be  decided  without  considering  them  fully. 

The  will  does  not  charge  the  land  with  the  payment  of  the 
debts,  in  exoneration  of  the  personal  estate.  The  personal  estate 
was  primarily  liable  for  the  payment  of  the  debts.  If  the  per- 
sonal estate  was  insufficient  to  pay  the  debts,  it  seems  to  me  that 
the  only  safe  course  for  the  executrix,  under  the  will,  would 
have  been  to  take  the  ordinary  steps  before  the  Orphans'  Court 
to  obtain  a  decree  for  the  sale  of  lands  to  pay  debts.  But  I  do 
not  think  it  necessary  to  examine  particularly  the  question,  some- 
what considered  in  the  argument,  whether  this  will  authorized 
the  executrix  to  sell  lands  to  pay  debts.  I  think  it  is  obvious 
that  the  conveyance  to  Stout  was  made  by  Prudence  Cooper,  in 
her  character  of  devisee  of  a  life  estate  in  the  lands,  and  by 
John  A.  Cooper  as  heir-at-law  of  the  remainder. 

Under  the  answer  of  Prudence  and  John  A.  Cooper,  admit- 
ting the  conversion  of  the  personal  estate  by  Prudence,  and  the 
insolvency  of  both  of  them,  and  the  design  on  their  part  to 
put  the  real  estate  beyonc}  the  reach  of  the  creditors  of  the  tes- 
tator, the  case  must  be  considered  in  the  same  light  as  if  the 
personal  and  real  estate  had  been  given  to  Prudence  absolutely 
and  in  fee,  and  she  appointed  executrix. 

It  is  a  different  case  from  that  of  an  intestacy  and  adminis- 
tration and  a  sale  by  the  heir  not  being  administrator;  and  is 
different,  also,  from  the  case  of  a  will  of  real  and  personal. estate 
devising  the  land  to  one  and  appointing  another  executor. 
It  is  the  case  of  a  will  devising  and  bequeathing  all  the  real 
and  personal  estate  of  the  testator  to  one  person,  and  appointing 
that  person  executrix  of  the  will,  and  a  purchase  of  the  land 
Irora  that  person  as  the  devisee  thereof,  no  order  for  the  sale  of 
lauds  to  pay  debts  having  been  obtained  or  applied  for.  In  such 
a  case,  if  the  executor,  in  breach  of  his  duty,  converts  the  per- 


SEPTEMBER  TERM,  1846.  507 

Ex'r  of  Cooper  v.  Cooper. 

sonal  property  to  his  own  use,  instead  of  applying  it  to  the 
payment  of  debts,  the  lands  devised  to  him  could  certainly  be 
subjected,  in  his  hands,  to  the  payment  of  the  debts.  And  in 
such  a  case  a  conveyance  of  the  land  by  the  devisee,  she  being 
executrix  also,  to  another,  should,  in  justice  to  the  rights  of 
creditors,  be  carefully  scrutinized.  I  will  not  inquire  whether, 
under  such  circumstances,  a  purchaser  of  the  land  can  be  a 
bonajide purchaser;  but  whether,  under  the  proofs  in  the  cause, 
Stout  can  be  held  to  be  a  bonajide  purchaser. 

I  think  there  is  no  doubt  that  a  creditor  may  come  into  this 
court  to  test  the  bona  fides  of  such  a  sale,  and  to  ask  that  the 
conveyance  be  decreed  void.  Was  this  sale,  then,  a  bona  fide 
transaction?  or  is  Stout  chargeable,  under  the  evidence,  as  a 
party  to  the  design  of  the  executrix  and  devisee  and  of  the  heir, 
as  admitted  by  them,  to  defeat  a  resort  by  the  creditors  of  the 
testator  to  the  land  for  the  payment  of  their  debts?  If  he  is,  it 
will  be  the  duty  of  the  court  to  declare  the  conveyance  void,  or 
to  subject  the  lauds  to  the  payment  of  the  debts,  though  Stout 
should  have  paid  the  consideration.  Whether  it  has  been  paid, 
or  how  much  of  it,  is  one  of  the  questions  in  the  cause. 

Stout  is  chargeable  with  knowledge  of  the  will  and  of  the 
provisions  of  it.  The  devisee  under  the  will  is  a  grantor  in  the 
deed  to  Stout,  and  the  deed  refers  to  the  will.  He  is  chargea- 
ble, then,  with  knowledge  that  the  devisee  conveying  to  him 
was  the  sole  executrix  of  the  will,  and  bound  to  apply  the  per- 
sonal estate  to  the  payment  of  debts,  and,  if  that  was  insuffi- 
cient, to  take  means  to  have  the  laud  sold  for  the  payment  of 
the  debts;  and  with  knowledge  that  if  the  executrix  and  devi- 
see had  wasted  the  personal  property  or  converted  it  to  her  own 
use,  the  lauds  devised  to  her  by  the  same  will  might  be  subject- 
ed in  her  hands  to  the  payment  of  the  debts. 

Beyond  this,  I  think  that,  by  testimony  in  the  cause  clearly 
competent,  Stout  is  charged  with  knowledge  of  the  existence 
of  the  debt  to  Nathan  Cooper's  estate;  and  that  at  the  time  the 
deed  was  made  to  him  it  was  unpaid ;  and  that  the  personal 
property  was  insufficient  to  pay  the  debts;  and  that  the  execu- 
trix had  failed  to  apply  even  what  there  was  towards  the  pay- 
ment of  the  debts. 

It  is  difficult  to  understand  how  Stout,  with  the  knowledge  of 


508  CASES  IN  CHANCERY. 

Ex'r  of  Cooper  v.  Cooper. 

these  several  matters,  could  have  agreed  to  buy  the  land,  unless 
the  price  agreed  upon  was  so  low  as  to  induce  him  to  assume 
the  risk,  or  unless  he  bought  with  a  view  to  aid  the  grantors  in 
defeating  the  creditors  from  subjecting  the  lands  to  the  pay- 
ment of  the  debts,  or  was  influenced  by  both  these  considera- 
tions. 

From  evidence  free  from  objection  as  to  competency,  it  ap- 
pears that  the  land  was  worth  a  third  more  than  the  price 
agreed  upon;  and  that  Stout  undertook  to  befriend  the  devisee 
and  executrix  in  the  matter,  to  use  his  own  expression  made  to 
the  witness  Young.  But,  in  addition  to  the  matters  above 
stated,  of  which  Stout  is  chargeable  with  knowledge,  we  may 
derive  aid  in  coming  to  a  satisfactory  conclusion  by  inquiring 
what  Stout  gave  in  consideration  for  the  deed,  by  way  of  se- 
curing the  purchase  money ;  and  what  was  the  position  of 
things  at  the  time  of  the  filing  of  the  complainant's  bill  and  the 
service  of  the  injunction  on  Stout  not  to  pay  the  purchase  money, 
and  at  ihe  time  when  the  complainant,  previous  to  filing  hw 
bill,  gave  Stout  notice  not  to  pay  over  any  money.  This  last- 
mentioned  notice  Stout  admits  was  given  about  September  1st, 
1834;  and  the  complainant's  bill  was  filed  October  9th,  1834, 
and  the  injunction  served  shortly  after. 

Stout,  in  his  answer,  says,  or  must  be  taken  as  intending  to 
say,  (the  language  in  the  answer  in  this  respect  is  studied  and 
peculiar,)  that  at  the  delivery  of  the  deed  to  him,  he  gave  three 
notes;  one  dated  July  24th,  1834,  to  Prudence  Cooper,  for 
$100,  payable  one  day  after  date;  one  dated,  by  mistake,  July 
25th,  1834,  but  intended  for  July  24th,  in  favor  of  Prudence 
and  John  A.  Cooper,  for  $200,  payable  in  thirty  days,  with 
interest;  and  one  dated  July  24th,  1834,  to  Prudence  Cooper, 
for  $200,  payable  in  eight  months,  with  interest ;  the  whole 
consideration  money  being  $500.  Now  it  appears  clearly,  by 
the  testimony  of  Henry  Hilliard,  that  one  of  the  notes  given 
by  Stout  was  for  $200,  payable  in  one  year.  And  Stout  hini- 
belf,  in  the  bill  filed  by  him  against  Nathan  A.  Cooper  and 
Henry  Hilliard,  on  the  2d  July,  1836,  says  that  on  the  execu- 
tion of  the  deed  from  Prudence  and  John  A.  Cooper  to  him,  on 
the  24th  July,  1834,  he  made  and  delivered  to  them  his  note 
of  that  date  for  $200,  part  of  the  consideration  money,  paya- 


SEPTEMBER  TERM,  1846.  509 

Ex'r  of  Cooper  v.  Cooper. 

ble  twelve  months  after  date.  Both  Stout's  answer  and  the 
answer  of  the  Coopers,  concur  that  a  note  for  $200  of  the  con- 
sideration money  was  given,  payable  in  eight  months.  It  is 
sufficiently  clear,  then,  even  without  the  answer  of  the  Coopers 
— though  I  see  no  objection  to  considering  that,  in  reference  to 
this  matter,  at  least — that  at  the  giving  of  the  deed,  two  notes, 
of  $200  each,  were  given  by  Stout,  one  payable  in  eight  months 
and  the  other  in  a  year.  It  follows  that  no  note  of  $200  was 
then  given,  payable  in  thirty  days,  for  the  whole  consideration 
money  was  but  $500. 

Stout's  answer,  if  it  is  to  be  taken  as  saying  that  a  thirty 
days'  note,  for  $200,  was  given  at  the  time  of  the  sale,  is  not 
according  to  the  fact.  This  is  a  very  controlling  consideration 
in  the  case.  Two  notes,  for  $200  each — i.  e.,  for  $400  of  the 
said  consideration  money — were  given,  both  dated  July  24th, 
1834,  one  payable  in  eight  months  and  the  other  in  a  year. 
There  is  now  exhibited  on  the  part  of  Stout,  a  note  dated  July 
25th,  1834,  to  Prudence  and  John  A.  Cooper,  for  $200,  at  thirty 
days,  with  interest.  This  note  must  have  been  substituted  for 
one  of  the  other  two  $200  notes. 

When  was  this  done,  and  for  what  purpose?  Was  it  done 
on  the  day  of  the  sale  ?  Why  make  any  change,  then,  in  the 
notes?  If  Stout,  after  giving  the  other  notes,  thought  he  could 
pay  $200  in  thirty  days,  was  he  so  apprehensive  that  the  money 
would  not  be  received  before  it  was  due,  that  he  insisted  on 
changing  one  of  the  $200  notes  to  a  thirty  days'  note?  Was 
this  change  made  before  Stout  was  served  with  the  injunction, 
or  before  he  received  the  notice  from  the  complainant,  before 
referred  to,  given  September  1st,  1834  ? 

Three  receipts  are  produced,  one  signed  by  Prudence  Cooper, 
on  the  back  of  a  note  made  by  Stout,  dated  July  24th,  1834,  to 
Prudence  Cooper,  for  $100,  payable  one  day  after  date,  which 
receipt  is  dated  July  26th,  1834,  and  is  in  full  for  the  note ; 
another  of  the  receipts  is  on  the  back  of  the  thirty  days'  note, 
and  is  dated  August  26th,  1834;  and  the  third  receipt  is  a  loose 
receipt,  signed  by  Prudence  Cooper,  for  $127.65,  to  be  credited 
"  on  a  certain  note  held  by  her  against  Stout,  for  the  sale  of 
laud."  This  receipt  is  dated  August  30th,  1834.  All  three  of 
these  receipts  are  dated  of  days  prior  to  the  1st  of  September. 


510  CASES  IN  CHANCERY. 

Ex'r  of  Cooper  v.  Cooper. 

There  is  a  singularity  in  this  matter,  well  calculated  to  induce 
a  severe  scrutiny  of  the  transaction ;  and  I  feel  that  I  am  iu 
very  little  danger  of  coming  to  a  wrong  conclusion,  in  saying 
that  these  papers  were  not  made  till  after  the  1st  of  September, 
and,  perhaps,  not  till  after  the  injunction  was  served.  If  I  am 
right  in  this,  the  next  question  is,  for  what  purpose  was  the 
change  made  in  the  note  of  $200,  and  for  what  purpose  were 
the  receipts  given  ?  It  could  only  be  for  the  purpose  of  making 
a  case  against  the  complainant,  and  this  was  an  object  in  which 
the  executrix,  at  that  time,  from  the  admissions  in  her  answer, 
would  naturally  join. 

Did  Stout  pay  the  moneys  for  which  these  receipts  were 
given  ?  If  the  change  in  the  note  was  made  for  a  purpose,  and 
evidence  of  the  payment  of  it  was  necessary,  for  the  same  pur- 
pose, and  both  parties  were  acting  with  a  common  design,  very 
little  reliance  is  to  be  placed  on  the  receipts,  as  evidence  of  actual 
payment  of  the  moneys.  But  if,  as  I  think  sufficiently  appears, 
this  change  in  the  note  and  these  receipts  were  not  made  till 
after  September  1st,  1834,  then  Stout  paid,  after  sufficient  notice 
to  put  him  on  inquiry,  and  the  payment,  after  notice,  and  the 
giving  and  taking  receipts  dated  of  a  day  prior  to  the  notice,  is, 
of  itself,  strong  evidence  of  bad  faith  in  the  original  matter  of 
the  sale  and  purchase. 

In  a  case  like  this,  where  the  devisee  making  the  deed  was 
also  executrix  of  the  will,  and  as  such,  if  the  personal  estate 
was  insufficient  to  pay,  should  have  applied  for  an  order  to  sell 
land  to  pay  the  debts,  but  omits  to  do  it  within  the  year,  and 
then,  as  devisee,  makes  a  deed  for  the  lands  to  another,  and  has 
not  even  applied  what  personal  estate  there  was,  towards  pay- 
ing the  debts,  but  has  converted  it  to  her  own  use,  there  is  a 
clear  breach  of  duty  and  want  of  good  faith  in  the  devisee  and 
executrix  in  making  the  sale  or  deed,  and  the  court  should  be 
well  satisfied  of  the  bona  fides  of  the  grantee  in  taking  the  deed. 
In  this  case,  the  circumstances  and  proofs,  even  without  the  aid 
of  the  testimony  of  Mrs.  Cooper  and  Mrs.  Stout,  which  was  ob- 
jected to  as  incompetent,  are  too  strong  evidence  of  the  bad  faith 
of  Stout  to  permit  the  lands,  and  the  value  of  them,  to  be  with- 
drawn from  the  creditors  of  the  testator. 

But  I  can  see  no  objection  to  the  testimony  of  Mrs.  John  A. 


SEPTEMBER  TERM,  1846.  611 

Ex'r  of  Cooper  v.  Cooper. 

Cooper ;  and  if  that  be  admitted  it  shows  that  Stout  got  from 
Mrs.  Prudence  Cooper  one  of  the  original  $200  notes  and  a 
loose  receipt  besides,  after  the  injunction  had  been  served  on 
him.  Her  testimony,  altogether,  goes  to  show  that  the  exchange 
of  notes  and  the  taking  of  the  receipts  was  to  enable  Stout  to 
make  an  answer  to  the  bill. 

As  to  the  testimony  of  Mrs.  Stout,  it  may  be  that  some  parts 
of  it  should  be  excluded,  on  the  ground  that,  at  the  time  of  the 
transaction  she  speaks  of,  she  was  the  wife  of  Stout.  But  there 
are  some  parts  of  her  testimony  which,  it  seems  to  me,  would 
not  fall  within  that  rule;  and  inasmuch  as  I  do  not  think  her 
testimony  essential  to  the  conclusion  at  which  I  have  arrived,  I 
do  not  think  it  necessary  to  examine  particularly  the  admissi- 
bility  of  the  different  parts  of  her  evidence.  Nor  do  I  see  that 
in  a  case  like  this  the  answer  of  the  Coopers  is  to  have  no  weight. 
The  bill  charges  the  Coopers  and  Stout  with  a  common  design, 
by  the  conveyance  of  the  property  to  Stout,  to  defeat  the  credi- 
tors, and  it  puts  them  all  to  answer.  The  Coopers  admit  it. 
This  is  certainly  evidence  that  they,  the  Coopers,  had  such  a 
design  ;  and  this  design  on  their  part  furnishes  a  reason  why 
they  might  be  willing  to  sign  their  names  to  receipts  to  be  used 
by  Stout  in  aid  of  their  design.  But,  to  proceed  a  step  further, 
if  a  bill  charging  such  a  design  between  a  grantor  and  grantee 
charges  that  no  money  was  paid,  and  the  grantor  admits  it, 
and  the  grantee  says  there  was,  may  not  the  admission  of  the 
grantor  be  considered  by  the  court,  in  aid  of  other  facts  and  cir- 
cumstances going  to  discredit  the  answer  of  the  grantee?  I  think 
it  may.  The  grantor  was  bound  to  answer  the  bill,  as  well  as 
the  grantee.  The  answers  will  agree  or  disagree.  If  the  grantee 
says  there  was  money  paid,  and  the  grantor  admits  there  was 
none  paid,  certainly  the  case  is  not  so  strong  in  support  of  the 
deed  as  if  both  had  answered  that  the  money  was  paid.  In 
\\eighing  the  testimony  as  to  the  fact,  this  disagreement  may  be 
put  in  the  scale. 

I  have  gone  carefully  over  the  answers  and  the  testimony  in 
the  cause,  and  I  am  constrained  to  say  that  it  appears  strongly 
to  me  that  the  case  made  by  the  bill  is  sustained. 

As  to  the  objection  that  Daniel  Horton's  representatives  should 
have  been  made  parties,  I  do  not  think  it  is  well  takeu.  It  is 


512  CASES  IN  CHANCERY. 

Brisley  v.  Jones. 

evident  he  was  but  a  surety  on  the  bond,  and  this  is  a  bill  to 
subject  the  lands  that  were  of  the  principal  obligor  to  the  pay- 
ment of  the  debt. 

On  the  whole,  I  think  the  deed  must  be  declared  void,  and 
the  lands  held  liable  for  the  payment  of  the  debt. 


BRISLEY  v.  JONES. 

A  having  recovered  a  judgment  at  law  against  B  and  issued  execution, 
which  was  returned  "  no  goods  or  lands,"  filed  a  creditor's  bill  against  B, 
Which,  after  answer,  was  dismissed  with  costs.  Held  that  the  judgment  at  law 
could  not  be  set  off  against  the  costs  of  B  on  the  creditor's  bill. 


Brisley  recovered  a  judgment  at  law  against  Jones,  and 
issued  execution  thereon,  which  was  returned  "no  good.-i  or 
lands,"  and  thereupon  filed  a  creditor's  bill  against  Jones,  wblch, 
after  answer,  was  dismissed  with  costs. 

Brisley  now  moved  that  his  judgment  at  law  be  set  offaga'nst 
these  costs. 


P.  D.  Vroom,  for  the  motion,  cited  13  Wend.  649  ;  16 
446;  1  John.  CH.  Rep.  91  ;  6  Ibid.  317;  3  Halst.  Rep.  17?. 

8.  R.  Grover,  contra,  cited  2  BL  Rep.  869  ;  2  N.  Y.  Term 
Rep.  105  ;  1  Paige  622. 

THE  CHANCELLOR.  The  bill  goes  on  a  charge  of  fraud,  a 
charge  that  the  defendant  has  property,  which  he  secretes,  and 
refuses  to  apply  to  the  payment  of  his  debts,  and  calls  for  an 
answer  and  discovery. 

If  there  is  no  ground  for  such  a  charge,  the  defendant  should 
not  be  subjected  to  the  payment  to  his  solicitor  of  the  costs  of 
resisting  it.  Mere  experiment  by  the  creditor  would  be  encour- 
aged if  his  judgment  at  law  would  protect  him  against  the  pay- 
ment of  costs  to  the  defendant. 

Motion  denied. 


SEPTEMBER  TERM,  1846.  513 

Bayles  v.  Staats. 


SARAH  BAYLES,  WIFE  OF  WILLIAM  BAYLES,  BY  HER  NEXT 
FRIEND,  v.  ISAAC  STAATS. 

A  trustee  who,  from  Jong-continued  intemperance,  has  become  unfit  to  have 
the  charge  of  the  trust  property,  will  be  removed,  and  a  new  trustee  will  be 
appointed. 

The  bill  states  that  Abraham  Staats,  the  complainant's  father, 
since  deceased,  by  his  will,  dated  August  17th,  1819,  did  devise 
and  bequeath,  among  other  things,  as  follows:  "Fourth,  I  give 
and  bequeath  all  the  other  half  of  my  farm  whereon  I  live,  to 
my  five  daughters,  each  share  and  share  alike,  their  heirs  and 
assigns.  Seventh,  my  will  is  further,  and  I  do  order,  that  the 
legacy  I  left  to  my  daughter  Sarah,  the  wife  of  William  Bayles, 
in  this  ray  last  will,  both  real  and  personal,  shall  remain  in  the 
hund-i  and  possession  of  my  executors  hereafter  named,  and  they 
to  pay  my  daughter  Sarah  a  reasonable  support  out  of  the  same 
yearly,  during  the  life  of  her  husband,  William  Bayles;  and 
after  his  decease  she  to  occupy  and  possess  the  same  as  it  is  or- 
dered in  my  will ;  but  if  she  should  die  before  her  husband, 
William  Bayles,  and  leave  her  child,  in  that  case  I  do  order  the 
said  legacy  left  as  aforesaid  shall  remain  in  tiie  hands  of  my  ex- 
ecutors, or  the  survivor  of  them,  for  the  use  of  the  child  ;  if 
the  child  die  before  the  age  of  eighteen  years  without  issue,  then 
the  same  to  return  to  my  estate  and  be  divided  according  to 
law." 

That  Isaac  Staats  and  John  Frelinghuysen  were  appointed 
executors,  and  duly  proved  the  will  and  took,  &c.  That  Mar- 
garet, one  of  the  testator's  daughters,  subsequently  died  leaving 
a  will,  dated  August  30th,  1821,  of  which  she  appointed  the 
said  Isaac  Staats  executor,  who  proved  the  same  and  took,  &c. ; 
by  which  will  of  the  said  Margaret  it  was,  among  other  things, 
provided  as  follows  :  "  First,  1  give  and  bequeath  all  the  land 
that  comes  to  my  share  of  my  father's  estate  to  my  four  sisters, 
all  to  share  equal.  Second,  I  give  and  bequeath  to  my  sister 
Sarah  one  hundred  and  fifty  dollars,  with  all  my  wearing  ap- 
parel. Fifth,  all  the  residue  of  my  estate,  after  payment  of 
debts,  I  give  and  devise  to  my  brother  and  four  sisters,  equally 


514  CASES  IN  CHANCERY. 

Bayles  v.  Staats. 

to  be  divided  among  them,  share  and  share  alike.  All  that 
part  of  my  estate  that  I  give  to  my  sister  Sarah  is  to  remain  in 
the  hands  of  my  executor1  or  his  executors  and  administrators, 
the  income  of  \t  for  her  use  during  the  lifetime  of  her  husband, 
William  Bayles;  and  if  he  should  die  before  her,  then  she  to 
have  full  possession  of  it  herself;  if  she  should  happen  to  die 
before  her  husband,  William  Bayles,  it  is  my  will  that  it  should 
remain  in  the  hands  of  my  executor  or  his  executors  and  ad- 
ministrators, for  her  child,  until  she  arrives  to  the  age  of  eighteen; 
if  she  should  die  before  that  time,  leaving  no  issue,  then  it  must 
be  equally  divided  between  my  brother  and  sisters  or  their  heirs." 

That  Bayles,  the  husband  of  the  complainant,  is  still  living, 
and  her  only  child  by  him,  now  the  wife  of  Cornelius  Latourette. 
That  John  Frelinghuyseu  hath  died,  leaving  the  said  Isaac 
Staats  surviving  executor  and  sole  trustee  of  the  property,  real 
and  personal,  so  given  and  bequeathed  to  the  complainant  by 
the  will  of  said  Abraham  Staats.  That  the  legacies  so  be- 
queathed to  the  complainant  by  the  respective  wills  of  the  said 
Abraham  and  Margaret  were  in  part  invested  in  divers  securi- 
ties, to  be  applied  as  directed  by  the  said  wills.  That  the  fund 
thus  invested  at  present  consists  of  a  note  of  Reuben  H.  Free- 
man, with  interest,  for  the  sum  of  $100 ;  a  note  of  Joseph  Ross, 
with  interest,  for  the  sum  of  $275;  and  a  note  of  John  H. 
Voorhees  for  the  sum  of  $375,  with  interest;  which  uotts  the 
complainant  says  she  cannot  now  particularly  describe,  they  be- 
ing in  the  possession  of  the  said  Isaac  Staats.  That  the  said 
Icaac,  owing  to  confirmed  habits  of  intemperance  and  conse- 
quent imbecility  of  judgment,  has  become  entirely  unfit  to  exe- 
cute the  trusts  created  by  the  respective  wills  of  the  said  Abra- 
ham and  Margaret ;  and  that  he  at  times  threatens  to  realize 
the  said  securities  and  apply  the  moneys  thence  arising  to  his 
own  use. 

That  he  has  lately  caused  a  suit  to  be  instituted  on  the  note 
of  the  said  R.  H.  Freeman,  constituting  a  part  of  the  fund  in- 
v(-!rd  for  the  benefit  of  the  complainant,  and  that  she  appre- 
hends that  if  the  said  suit  proceeds  to  judgment  and  execution, 
the  said  Isaac  will  enforce  the  payment  thereof,  and  misapply 
the  money.  That  the  said  note  constitutes  a  safe  and  satisfac- 
tory investment,  and  that  the  suit  for  the  recovery  of  the  amount 


SEPTEMBER  TERM,  1846.  515 

Bayles  v.  Staats. 

due  thereon  is  brought  against  the  express  wishes  of  the  com- 
plainant, and,  as  she  believes,  with  the  design  of  misapplying 
the  proceeds  thereof  to  the  use  of  the  said  Isaac.  That  the  said 
Isaac,  in  consequence  of  the  conveyance  of  his  real  estate  to  his 
daughter  and  her  heirs,  and  the  sale  of  his  personal  property 
and  a  judgment  by  confession  to  a  large  amount,  a  considerable 
part  of  which  remains  unpaid,  is  irresponsible  and  insolvent. 

The  bill  prays  that  a  fit  and  competent  person  may  be  ap- 
pointed, in  the  place  of  the  said  Isaac  Staats,  to  take  charge  of 
the  real  estate  devised  to  the  complainant  by  the  said  respective 
wills,  and  to  manage  the  trust  fund  so  invested  for  her  use;  and 
that  the  said  notes  and  other  assets,  if  any,  constituting  the  said 
fund  may  be  delivered  over  by  the  said  Isaac  to  the  person  so 
to  be  appointed  ;  and  that  the  said  Isaac  may  account,  &c. ;  and 
that  he  may  be  enjoined  from  further  proceeding  in  the  said  suit 
against  Freeman,  and  from  disposing  of  any  of  the  said  notes  or 
assets  by  sale,  assignment  or  otherwise. 

On  this  bill  an  injunction  was  issued  restraining  Isaac  Staats 
from  further  proceeding  in  the  suit  against  Freeman  on  the  said 
note  given  by  him,  and  from  prosecuting  either  of  the  other 
notes,  until  he  should  answer  the  bill  and  the  court  should 
make  other  order  to  the  contrary;  and  the  injunction  was  served 
on  the  7th  February,  1846.  A  subpoena,  returnable  to  March 
Term,  1846,  was  also  served  on  the  same  day. 

At  the  June  Term,  1846,  the  defendant  having  failed  to  appear, 
•  an  order  was  made  that  the  complainant  proceed  to  take  deposi- 
tions, &c.,  and  bring  on  the  hearing  of  the  cause  exparte. 

John  H.  Voorhees  testifies  that  he  borrowed  $335  of  John 
Frelinghuysen,  executor  of  the  will  of  Abraham  Staats,  de- 
ceased, and  gave  his  note  for  it ;  that  Isaac  Staats  has  become  a 
common  drunkard  ;  that  he  saw  him  pretty  much  every  day  the 
week  before,  and  that  he  was  very  drunk  every  time,  and  stupe- 
fied with  liquor;  that  he  thinks  Isaac  Staats  incompetent,  from 
the  life  he  has  led,  and  his  conduct,  to  have  the  management  of 
the  fund  in  question  ;  that  he,  witness,  has  been  a  judge  of  the 
Common  Pleas  of  Somerset  between  nine  and  ten  years;  that  he 
supposes  Isaac  Staats  to  he  a  little  rising  fifty  years  old. 

Mrs.  Jaiie  Doty,  a  sister  of  Isaac  Staats,  testifies  that  in 


516  CASES  IN  CHANCERY. 

Bayles  v.  Staats. 

January,  1846,  (the  bill  was  filed  on  the  30th  of  that  month,) 
she  heard  Isaac  say  he  meant  to  use  the  money,  and,  if  that  did 
not  hold  out,  the  lauds  of  Sarah  Bayles  ;  that  she  does  not  con- 
sider him  capable  of  managing  the  fund  in  question,  from 
habitual  intemperance ;  that  the  suit  brought  by  Isaac  against 
Freeman  was  against  the  wishes  and  desire  of  the  complainant. 

Mary  Staats,  a  sister  of  Isaac,  testifies  to  the  unfitness  of 
Isaac  to  manage  the  fund,  by  reason  of  his  intemperance  ;  that 
she  heard  him  say  he  meant  to  collect  the  money  in  Joseph 
Ross'  hands,  alleging  that  he  was  not  punctual  in  paying  the 
interest ;  this  was  after  he  sued  the  note  of  Freeman  ;  Mrs. 
Bayles  was  satisfied  with  the  investment  in  Ross'  hands. 

Caleb  Morton,  a  judge  of  the  Common  Pleas  of  Somerset,  tes- 
tifies that  he  has  known  Isaac  Staats  nearly  thirty- two  years  ; 
that  for  the  last  twenty-two  years  he  seldom  or  never  saw  him 
sober;  he  has  the  reputation  of  being  habitually  intemperate; 
that  he  does  not  consider  him  a  safe  depository  of  money. 

Caleb  C.  Brokaw  testifies  that  he  has  known  Isaac  Staats  over 
twenty  years;  during  the  last  ten  or  fifteen  years,  and  perhaps 
longer,  he  has  been  habitually  intemperate  ;  for  the  last  few 
years  he  has  considered  him  incompetent  to  manage  any  import- 
ant business  ;  witness  does  not  think  that  moneys  belonging  to 
others  would  be  safe  in  his  management  and  custody. 

The  will  of  Abraham  Staats,  and  a  certified  copy  of  the  will 
of  Margaret  Staats,  were  exhibited. 

Mr.  Leupp,  for  the  complainant. 

THE  CHANCELLOR.  The  case  made  by  the  bill  is  sustained 
by  the  testimony.  A  new  trustee  will  be  appointed  in  the  place 
of  Isaac  Staats ;  and  the  account  prayed  by  the  bill  directed  to 
be  taken  ;  and  the  trust  fund  ordered  to  be  delivered  and  paic 
ov«:r  to  the  new  trustee. 


SEPTEMBER  TERM,  1846.  517 

Adm'r  of  Moore  v.  Adm'r  of  Poland. 


THE  ADMINISTRATOR  OF  LEWIS  MOORE,  DECEASED,  v.  THE 
ADMINISTRATOR  OF  CORNELIUS  POLAND,  DECEASED. 

P.  gave  a  mortgage  to  M.,  and  afterwards  married  one  of  M.'s  two  daugh- 
ters and  only  children.  M.  died  intestate,  leaving  a  widow  and  the  said 
two  daughters.  The  widow  died  shortly  after.  After  the  death  of  M.  and 
the  widow,  H.  married  the  other  daughter,  and  she  died  without  issue.  H. 
then  administered  on  M.'s  personal  estate,  and  filed  a  bill  of  foreclosure  on 
the  mortgage.  Held  that  H.,  by  administering  on  the  estate  of  his  deceased 
wife,  would  become  entitled  to  her  share  of  the  amount  due  on  the  mortgage, 
without  liability  to  account,  but  that  no  more  of  the  mortgaged  premises 
should  be  decreed  to  be  sold  than  enough  to  pay  the  share  of  H.'s  deceased 
wife. 


Bill  for  foreclosure.  Cornelius  Poland  gave  a  mortgage  to 
Lewis  Moore,  dated  April  3d,  1835,  to  secure  $1200,  according 
to  the  condition  of  a  bond,  &c.,  in  one  year.  Moore  died  intes- 
tate, in  January,  1836,  leaving  a  widow  and  two  daughters, 
Jane  and  Ann,  leaving  no  real  estate,  and  very  little  personal 
property,  except  this  bond  and  mortgage.  Before  the  death  of 
Moore,  Poland  married  the  daughter  Jane. 

The  answer  states  that  after  the  death  of  Moore,  the  widow 
and  daughters  consulted  as  to  the  expediency  of  taking  out  let- 
ters of  administration,  and  agreed  that,  from  the  situation  of 
the  family  and  the  nature  of  the  property,  it  was  unnecessary 
and  inexpedient,  and  that  it  was  agreed  that  the  widow  should 
receive  the  income  of  the  property,  consisting  of  little  more  than 
the  interest  on  this  bond  and  mortgage,  during  her  life,  and  that 
at  her  death,  the  property  should  be  equally  divided  between 
the  two  daughters,  by  whom  the  debts,  if  any,  should  be  paid 
equally.  That  Thomas  Hull,  who  afterwards  married  the 
daughter  Ann,  was  informed  of  this  arrangement.  That  under 
this  arrangement,  he,  Poland,  paid  to  the  widow  the  year's 
interest,  and  loaned  to  her  other  sums  of  money,  which  he  sub- 
mits should  be  decreed  to  have  been  paid  to  her  on  account  of 
her  share  and  interest  in  the  sum  secured  by  the  bond  and 
mortgage.  That  the  widow  died  in  1837,  and  that,  from  her 
death,  Ann  lived  and  made  her  home  with  Poland  and  his  wife, 
till  October,  1842,  when  she  married  Thomas  Hull. 


518  CASES  IN  CHANCERY. 

Adm'r  of  Moore  v.  Adin'r  of  Poland. 

Ill  January,  1814,  Henry  S.  Lupardus  took  out  letters  of 
administration  of  the  estate  of  Moore,  and  in  March,  1844,  filed 
his  bill  of  foreclosure  on  the  said  mortgage.  Ann  Hull  died 
without  issue,  in  May,  1845. 

Poland  died  after  the  suit  was  commenced,  and  before  answer- 
ing, and  the  answer  is  put  in  by  the  administrator  of  .his  estate. 

The  answer  states  that  he,  the  administrator,  has  been  in- 
formed and  believes  that  Ann  desired  and  requested  that  her 
part  of  the  interest  on  the  bond  and  mortgage  should  go  on 
account  of  her  board,  while  she  was  living  and  continued  to  live 
and  board  in  Poland's  family,  and  that,  over  and  above  such 
board,  Poland,  in  the  years  1837,  1838,  1839,  and  1840,  fur- 
nished articles  and  paid  or  advanced  to  or  for  the  said  Ann 
divers  sums  of  money. 

Poland  died  in  September,  1844,  leaving  Jane,  his  widow,  and 
several  minor  children.  No  administration  was  taken  of  the 
estate  of  the  widow,  or  that  of  Mrs.  Hull. 

Testimony  was  taken  touching  the  alleged  agreement  that 
the  widow  should  receive  the  interest  on  the  bond  during  her 
life,  and  as  to  whether  Ann  was  to  pay  board  while  she  lived 
at  Poland's,  or  whether  her  services  in  the  family  were  consid- 
ered equivalent  to  her  board,  and  also  as  to  the  property  which 
Lewis  Moore  left  besides  this  bond  and  mortgage. 

W.  Patterson,  for  complainant. 
W.  H.  Leupp,  for  defendant. 

THE  CHANCELLOR.  Poland,  the  mortgagor,  as  the  husband 
of  Jane,  is  entitled  to  her  share  of  the  money  due  on  the  mort- 
gage. Hull,  surviving  husband  of  Ann,  deceased,  by  adminis- 
tering on  her  estate,  will  be  entitled  to  what,  if  anything,  may 
be  due  on  her  share,  without  liability  to  account. 

No  more  of  the  mortgaged  premises  should  be  ordered  to  be 
sold  than  will  be  sufficient  to  pay  what,  if  anything,  may  be 
due  from  Poland  on  Ann's  share. 

A  reference  will  be  ordered  to  ascertain  what,  if  anything,  is 
due  on  Ann's  share,  and  whether  part  of  the  mortgaged  pre- 


SEPTEMBER   TERM,  1846.  519 

Ballentine  v.  Ballentine. 

raises  can   be  sold  to  pay  it,  with   liberty  to  use  the  testimony 
already  taken  in  the  cause. 

Hull  should  take  out  letters  of  administration  of  the  estate  of 
his  deceased  wife. 

Order  accordingly. 


BALLENTINE  v.  BALLENTINE. 

On  bill  by  wife,  by  her  next  friend,  against  her  husband,  for  alimony  and 
maintenance,  a  motion  on  the  part  of  the  defendant  that  the  complainant  file 
security  for  costs,  was  denied. 

This  was  a  bill  by  the  wife,  by  her  next  friend,  against  the 
husband,  for  alimony  and  maintenance,  and  for  the  support  of 
their  child. 

A.  Whitehead,  on  the  part  of  the  defendant,  moved  that  the 
complainant  give  security  for  costs,  and  relied  on  Rev.  Stat. 
925,  §  11. 

Wm.  M.  Scudder,  contra. 

THE  CHANCELLOR.  Under  Sections  10  and  11  of  Rev.  Stat. 
924,  925,  the  bill,  I  think,  might  be  filed  by  the  wife  in  her 
own  name,  without  a  next  friend.  I  am  not  prepared  to  say 
that,  in  that  case,  the  llth  section,  providing  that  in  any  such 
suit  it  shall  and  may  be  lawful  for  the  Chancellor,  if  applied  for 
before  answer  filed,  to  order  a  bond  to  be  given  in  one  hundred 
dollars,  by  one  or  more  sufficient  freeholders,  with  condition  to 
pay  such  costs  as  may  be  awarded  to  be  paid  to  the  defendant, 
is  imperative.  Even  in  suits  by  the  wife  for  alimony,  this  court, 
in  proper  cases,  makes  an  order  on  the  husband  to  pay  money 
i'or  the  wife's  costs  and  expenses.  In  this  case  the  next  friend 
is  admitted  to  be  a  freeholder,  and  no  question  is  made  as  to  his 
responsibility. 

Motion  denied. 


REPORTS  OF  CASES 

ARGUED   AND   DETERMINED   IN   THE 

COURT  OF  ERRORS  AND  APPEALS 

IN  THE  LAST  RESORT  IN  ALL  CAUSES 

IN  THE 

STATE  OF  NEW  JERSEY, 

ON  APPEAL  FROM  THE  COURT  OF  CHANCERY. 


GEORGE  B.  HALSTED, 

REPORTER. 

VOL.  I.  2  K  621 


These  reports  c-ommence  with  the  cases  on  appeal  from 
the  Court  of  Chancery  determined  in  the  Court  of  Errors  and 
Ap|>eals,  as  organized  under  the  constitution  of  New  Jersey 
agreed  upon  on  the  29th  of  June,  A.  D.  1844,  by  a  con- 
vention of  delegates  elected  by  the  authority  of  an  act  of 
the  legislature  to  prepare  a  constitution  for  the  government  of 
said  state,  to  be  submitted  to  the  people  for  their  ratification, 
and  adopted  by  the  people  at  an  election  held  on  the  15th  of 
August,  A.  D.  1844. 

The  judges  of  the  Court  of  Errors  and  Appeals  are  the  Chan- 
cellor, the  five  justices  of  the  Supreme  Court,  and  six  others, 
appointed  judges  of  this  court  for  a  term  of  six  years. 

By  a  subsequent  act  of  the  legislature,  the  Chancellor,  when 
lie  sits  as  a  member,  is  the  president  of  the  court;  in  case  of 
his  absence,  the  Chief  Justice  of  the  Supreme  Court;  and  in 
case  of  the  absence  of  both  of  these  officers,  the  senior  in  office 
of  the  justices  of  the  Supreme  Court  who  may  be  present. 

The  judges  of  the  Court  of  Errors  and  Appeals  at  the  com- 
mencement ofthe.se  reports  were  : 

OLIVER  S.  HALSTED,  Chancellor. 

JOSEPH  C.  HORN  BLOWER,  Chief  Justice  of  the 

Supreme  Court. 

JAMES  S.  NEVIUS,  ^ 

IRA  C.  WHITEHE4  D,  !  Justices  of  the  Su' 

JOSEPH  F.  RANDOLPH,  preme  Court. 

THOMAS  P.  CARPENTER,      J 
523 


JOSEPH  PORTER, 

FERDINAND  S.  SCIIENCK, 

Appointed    Judges 
JAMES  SPEER, 

JONATHAN  J.  SPENCER, 

AARON  ROBERTSON,  °f  thls  Court' 

JOSHUA  BRICK, 

The  constitution  required  that  these  six  appointed  judges 
of  this  court  should,  immediately  after  the  court  should  first 
assemble,  arrange  themselves  in  such  manner  that  the  seat  of 
one  of  them  should  be  vacated  every  year,  in  order  that  there- 
after one  judge  might  be  annually  appointed.  The  changes 
of  the  judges  of  this  court,  under  this  provision  of  the  consti- 
tution and  otherwise,  will  be  noted  as  they  occur. 

The  constitution  provides  that  when  an  appeal  from  an 
order  or  decree  in  chancery  shall  be  heard,  the  Chancellor  shall 
not  sit  as  a  member,  or  have  a  voice  in  the  hearing  or  final 
decision;  but  shall  inform  the  court,  in  writing,  of  the  reasons 
of  his  order  or  decree.  In  cases  in  equity,  therefore,  in  this 
state,  the  appeal  is  from  the  Court  of  Chancery  to  the  justices 
of  the  Supreme  Court  and  the  six  appointed  judges  of  the  Court 
of  Errors  and  Appeals. 

In  the  first  six  cases  reported,  the  present  Chancellor  sat,  they 
being  appeals  from  orders  and  decrees  of  former  Chancellors. 

524 


OA.SES 

ADJUDGED  IN   THE 

COURT  OF  ERRORS  AND  APPEALS 

\ 

OF    THE 

STATE  OF  NEW  JERSEY, 

ON    APPEAL  FROM   CHANCERY, 

OCTOBER  TERM,  1845. 


FULGENCE   CHEGARY,  APPELLANT,  v.  JAMES    J.    8COFIELD 
AND  THOMAS  L.  KING,  RESPONDENTS. 

1.  An  appeal  lies  from  an  order  dissolving  an  injunction. 

2   The  appeal  itself  does  not  stay  proceedings  on  the  order  appealed  from. 

3.  After  appeal,  the  Court  of  Errors  and  Appeals  may  stay  proceedings  on 
the  order  appealed  from,  and  this  power  extends  to  orders  dissolving  injunc- 
tions. 

4.  An  order  of  this  court  staying  proceedings  under  an  order  dissolving  an 
injunction  which  was  appealed  from,  was,  under  the  circumstances  stated  iu 
this  case,  vacated  at  the  next  subsequent  term. 


Fulgence  Chegary,  in  August,  1844,  exhibited  his  bill  in 
the  Court  of  Chancery,  stating  that,  in  1839,  he  bought  of  J. 
R.  Freeman  a  tract  of  land  of  about  seventy  acres,  near  the 
village  of  Madison,  ito  Morris  county,  for  the  sum  of  $3875, 
and  gave  to  Freeman  a  mortgage  thereon,  for  $1400,  part  of  the 
purchase  money,  on  which  mortgage,  $1000,  with  interest  from 
April,  1844,  remained  due.  That  when  he  bought  the  said 

625 


526          COURT  OF  ERRORS  AND  APPEALS. 

Chegary  v.  Scofield. 

land,  there  was  an  old  dwelling-house  and  barn  on  it,  much  out 
of  repair,  and  that  the  fences  were  in  a  state  of  decay.  That 
he  bought  the  said  tract  for  the  purpose  of  building  a  large 
house  thereon,  for  a  seminary  on  an  extensive  sale,  and  accord- 
ingly, in  1839,  built  such  house  thereon,  at  the  cost  of  $10,000, 
and  that  he  expended  on  said  tract,  in  fences  and  other  improve- 
ments, about  $2000  more. 

That  after  he  bought  the  said  land,  he  became  indebted  to 
"  the  president,  directors,  and  company  of  the  State  Bank  at 
Morris"  in  the  sum  of  $1500,  to  secure  the  payment  of  which, 
he,  with  Heloise  D.,  his  wile,  gave  to  the' said  bank  a  mortgage 
on  the  said  tract  of  laud.  That  in  1843,  the  said  bank,  by  J.  J. 
Scofield,  their  solicitor,  exhibited  their  bill  in  the  Court  of  Chan- 
cery for  the  foreclosure  of  the  said  mortgage  and  the  sale  of  the 
said  tract,  at  which  time  he  and  his  wife  resided  in  the  city  of 
New  York,  where  they  have  resided  ever  since.  That  in  April, 
1844,  a  decree  was  made  in  that  suit  for  a  sale  of  the  mortgaged 
premises,  and  an  execution  for  the  sale  thereof  was  delivered  to 
Thomas  L.  King,  sheriff  of  Morris  county.  That  on  the  12th 
August,  1844,  the  said  sheriff  sold  the  premises  at  Morristown, 
about  three  miles  distant  from  the  premises,  in  lump,  for  $3400. 
That  J.  J.  Scofield,  the  solicitor  for  the  said  bank,  purchased 
the  premises  at  the  said  sheriff's  sale,  but  had  not  yet  taken  a 
deed  from  the  sheriff.  That  he,  Chegary,  prior  to  the  sale, 
and  for  some  time  afterwards,  and  until  August  21st,  1844,  had 
no  knowledge  that  the  sheriff  had  the  execution,  or  that  the 
premises  weie  advertised  for  sale.  That  he  took  a  newspaper, 
called  "The  Jerseyman,"  printed  at  Morristown,  in  which  he 
supposed  the  sheriff  would  advertise  the  sale,  whenever  he  in- 
tended to  sell  by  virtue  of  any  execution  that  might  be  issued 
upon  the  said  decree,  and  that  the  sale  was  not  advertised  in  the 
said  newspaper. 

That  he,  Chegary,  long  before,  and  at  the  time  of  the  sale, 
had  counsel  engaged  for  him  in  his  law  business  in  New  Jersey, 
namely,  J.  W.  Miller  and  E.  Whelpley,  esquires,  residing  in 
Morristown,  who  knew  nothing  of  the  side,  and  did  not  know 
that  the  sale  was  advertised,  as  he,  Chegary,  was  informed. 

That  G.  Desabay,  his  brother-in-law,  who  resided  on  the 
premises  at  the  time  of  the  sale,  and  had  resided  there  for  scve- 


OCTOBER  TERM,  1845.  527 

Chegary  v.  Scofield. 

ral  years  before,  knew  nothing  of  the  sale,  as  he  informed  him, 
Chegary.  That  he,  Chegary,  had  many  acquaintances  at  Mor- 
ristown,  and  in  the  neighborhood  of  the  mortgages  premises, 
who  knew  nothing  of  the  sale,  as  he  is  given  to  understand,  or 
that  the  premises  were  advertised  for  sale.  That  the  sheriff 
never  adjourned  the  sale,  but  sold  on  the  first  day  appointed  for 
the  sale.  That  the  premises  were  worth,  at  the  time  of  the 
sale,  $10,000,  and  would  have  brought  $8000  at  the  sheriff's 
sale,  if  he,  Chegary,  had  been  apprised  thereof.  That  it  was 
his  intention  to  have  procured  a  purchaser  of  the  premises 
whenever  the  sheriff  should  advertise  the  sale,  and  had  a  number 
of  French  gentlemen  in  view  on  whom  he  relied,  being  himself 
a  Frenchman,  who  were  able  to  purchase  and  save  the  property 
from  being  sacrificed.  That  the  said  farm  or  tract  of  land,  re- 
serving the  said  house  built  by  him  and  two  acres  of  ground 
adjoining  thereto,  is  worth  enough  to  satisfy  the  said  two  mort- 
gages ;  and  that  the  premises  might  have  been  sold  in  such 
manner  as  to  save  so  great  a  loss  as  he  must  sustain  if  the  sheriff's 
sale  be  allowed  to  stand.  That  the  said  sale,  as  he  has  beeu 
advised,  and  has  reason  to  believe,  was  not  duly  advertised. 

The  bill  prays  relief  against  the  said  sale,  and  that  new  bid- 
dings be  allowed  ;  and  that  the  sheriff  be  enjoined  from  deliv- 
ering a  deed  to  said  Scofield. 

On  the  30th  August,  1844,  the  injunction  was  allowed. 

On  the  14th  January,  1845,  on  motion  and  argument,  without 
answer,  the  injunction  was  dissolved. 

Shortly  after  the  dissolution  of  the  injunction,  and  within  the 
thirty  days  given  to  appeal,  the  sheriff  made  and  delivered  a 
deed  for  the  premises. 

On  the  12th  February,  1845,  Chegary  filed  his  petition  of 
appeal  in  this  court,  appealing  from  the  said  order  dissolving 
the  injunction  ;  and  stating,  as  grounds  for  appeal,  that  the  mat- 
ters stated  in  his  bill  are  sufficient  to  support  the  injunction  ; 
that  the  defendants  have  not  answered  the  bill  ;  and  that,  there- 
lore,  on  the  motion  to  dissolve  the  injunction,  the  matters  stated 
in  the  bill  were  to  be  taken  as  true. 

At  the  July  Term.  1845,  of  this  court,  on  motion  in  behalf  of 
Chegary,  this  court  made  an  order  staying  all  proceedings  under 


528    COURT  OF  ERRORS  AND  APPEALS. 

Chegary  v.  Scofield. 

and  by  virtue  of  or  consequent  upon  the  said  sheriff's  sale,  until 
the  determination  of  the  appeal  or  this  court  make  other  order. 
At  the  October  Term,  1845,  of  this  court,  a  motion  was  made 
on  behalf  of  the  appellees  to  vacate  the  last-mentioned  order. 

J.  J.  Scofield  and  H.  W.  Green,  for  the  motion.  They  cited  3 
John.  Rep.  540,  547;  4  Ibid.  25,  510;  7  John.  Chan.  Rep. 
295;  2  Ho/.  Ch.  Pra.  31,  32;  15  Ves.  185;  20  Wend.  590; 
1  Halst.  Dig.  239 ;  2  Wend.  137;  17  Ves.  380. 

S.  Scudder  and  P.  D.  Vroom,  contra.  They  cited  Elm.  Dig. 
63,  No.  62;  Cranch,  51;  1  Green's  Ch.  182;  3  Paige  381, 
386;  Ibid.  213;  Eden  on  Injunc.  229;  15  Vesey  180;  5  Price 
468  ;  2  Exch.  Rep.  279  ;  1  Jac.  and  Walk.  616 ;  14  Ves.  585  ; 
9  Paige  502,  503. 

HORNBLOWER,  Chief  Justice. 

The  great  object  of  the  complainant's  bill  was  to  set  aside  the 
sheriff's  sale,  and  to  have  the  premises  re-sold,  in  the  hope  of  a 
more  advantageous  one.  This  was  a  legitimate  object,  and  one 
the  complainant  may  attain,  if  his  case  is  such  as  to  entitle  him 
to  it,  But,  in  order  to  accomplish  this  result,  it  was  necessary 
for  him  tc~,arrest  the  proceedings  of  the  sheriff,  and  prevent  him 
from  delivering  a  deed  to  the  purchaser.  He  therefore  prayed 
that  the  Chancellor  would  grant  an  injunction  restraining  the 
sheriff  from  executing  and  delivering  a  deed  for  the  premises  to 
Mr.  Scofield,  the  purchaser. 

Upon  perusing  the  complainant's  bill,  it  seems  the  Chancellor 
thought  an  injunction  ought  to  issue;  and,  accordingly,  he 
enjoined  the  sheriff  from  executing  or  delivering  a  deed  to  the 
purchaser  until  the  further  order  of  the  court.  Soon  afterwards, 
the  defendants,  upon  notice,  moved  the  Chancellor  to  dissolve 
the  injunction,  and  after  hearing  the  parties  by  their  counsel,  he 
made  an  order  dissolving  it.  From  this  order  the  complainant 
appealed  to  thid  court,  and  at  the  last  term,  (and,  as  they  say, 
by  surprise,  and  in  the  absence  of  the  respondents'  counsel,) 
obtained  an  order  of  this  court  in  the  following  words  (pro  ut.) 

The  respondents  now  move  to  vacate  that  order,  as  irregu- 
larly and  unadvisedly  made.  Upon  this  motion,  I  consider  the 


OCTOBER  TERM,  1845.  529 

Chegary  v.  Scofield. 

whole  question  open  before  the  court,  whether  such  an  order 
could  lawfully  be  made  by  this  court.  But  counsel  have  not 
only  argued  that  question,  but  have  discussed  the  expediency 
or  justice  of  making  any  such  order,  if  the  court  had  authority 
to  do  so.  The  debate  on  this  secondary  question  led  unavoida- 
bly, at  least  to  some  extent,  to  an  examination  of  the  bill,  ami 
a  discussion  of  the  merits  of  the  case,  or,  in  other  words,  to 
an  inquiry  whether  the  appellant,  by  his  bill  of  complaint,  had 
entitled  himself  in  equity  to  a  writ  of  injunction. 

Upon  this  latter  question  I  do  not  mean  to  express  any  opin- 
ion. It  will  be  time  enough  to  do  so  when  this  appeal  comes  to 
be  heard  upon  the  merits.  Whether  the  Chancellor  committed 
an  error  in  dissolving  the  injunction  is  a  matter  not  now  before 
this  court.  The  simple  question  now  to  be  decided  is,  whether 
the  order  made  at  the  last  term  ought  to  be  vacated ;  or,  which 
is  the  very  same  thing,  whether  this  court  have  any  right  to 
make  sucJi  an  order  as  the  one  entered  at  the  last  term  ? 

That  the  Chancellor,  after  an  appeal  from  his  decision,  may 
make  a  temporary  order  suspending  the  effects  or  the  legal  con- 
sequences of  such  decision,  until  the  appeal  can  be  heard  ;  or, 
in  case  the  Chancellor  does  not  do  so,  that  this  court  has  power 
to  re.-train  the  party  from  proceeding  to  execute  or  act  under  or 
t7i  pursuance  of  the  Chancellor's  decree,  or  to  do  what  thai  decree 
has  simply  left  him  at  liberty  to  do,  I  have  no  doubt. 

The  latter  position  seemed  to  be  denied  by  the  respondents' 
counsel,  and,  with  great  ability  and  learning,  he  pointed  out 
the  distinction  between  an  appeal  from  an  order  of  the  Chan- 
cellor which  authorized,  or  created,  or  gave  a  right  to  the 
party  to  do,  or  to  enjoy,  or  to  have  something  which,  without 
fetich  order  or  decree,  he  could  not  have  done  or  enjoyed,  and  an 
order  which  simply  left  the  party  at  liberty  to  act  as  he  might 
have  done  if  no  bill  had  been  filed,  or  no  injunction  had  ever 
issued.  In  other  words,  between  those  cases  where  the  party 
is  proceeding  to  execute  the  decree,  or  is  acting  under  an  affir- 
mative or  specific  authority  given  him.  by  the  decree,  and  those 
cases  in  which  the  Chancellor,  by  his  order  or  decree,  only  sets 
(he  party  free  from  any  restraint  and  releases  him  to  do  what 
he  might  have  done  before  bill  filed.  This  is,  no  doubt,  a  plain 
distinction,  and  for  some  purposes  may  be  a  useful  one,  and 


530         COURT  OF  ERRORS  AND  APPEALS. 

Chegary  v.  Scofield. 

though,  in  the  view  I  have  taken  of  this  case,  it  may  not  be 
necessary  to  examine  the  soundness  of  that  distinction,  or, 
rather,  the  use  of  it,  as  applied  to  this  case,  yet,  that  I  may 
not  be  misapprehended,  I  feel  bound  to  say  that  the  distinction, 
though  it  exists  in  the  mind,  can  have,  in  my  opinion,  no  such 
practical  influence  in  this  case  as  counsel  thinks  it  ought  to 
have. 

The  argument  is,  that  as  the  Chancellor  only  dissolved  the 
injunction,  the  sheriff  was  at  liberty  to  act  just  as  he  might 
have  acted  before  the  bill  was  filed.  It  was  just  as  if  no  injunc- 
tion had  ever  been  issued ;  that  he  was  not  executing  any  de- 
cree; he  was  not  proceeding  in  the  cause;  he  was  not  doing 
anything  for  the  doing  of  which  he  derived  his  authority  from, 
the  Chancellor. 

It  seems  to  me  the  inconclusiveness  of  this  argument  must 
appear  by  simply  asking  the  question  whether,  after  this  bill 
filed,  and  after  the  Chancellor  had  granted  the  injunction,  the 
sheriff  could  have  delivered  the  deed  without  the  Chancellor's 
permission  ?  Certainly  he  could  not;  and  then  it  is  by  the  au- 
thority and  permission  of  the  Court  of  Chancery,  and  in  virtue 
of  the  Chancellor's  judicial  decision,  that  he  acts  in  the  matter 
and  delivers  the  deed.  It  is  this  very  decree  that  the  appellant 
complains  of  in  this  court,  and  he  comes  here  to  get  it  re- 
versed. 

What  is  the  difference  between  simply  dissolving  the  injunc- 
tion and  dismissing  the  bill  upon  a  final  hearing? 

If  I  file  a  bill  claiming  a  tract  of  laud,  and  get  an  injunction 
restraining  the  defendant  from  (earing  down  a  house,  or  cutting 
down  the  timber,  and  while  the  injunction  is  in  force,  the 
cause  comes  to  a  hearing  on  the  pleadings  and  proofs,  and  the 
Chancellor  decides  against  my  title  and  dismisses  my  bill,  and 
thereupon  the  defendant  renews  his  work  of  destruction,  does 
he  not  do  it  by  the  authority  and  under  the  decree  of  the  Chan- 
cellor? And  if  I  appeal  from  that  final  decree,  cannot  this 
court  interpose,  and  by  an  order  in  the  nature  of  an  injunction 
protect  the  property  and  restrain  the  defendant  and  all  other 
persons  acting  or  claiming  under  him  from  wasting  and  de- 
stroying the  property  ?  Would  it  be  any  answer  to  say  it  is  the 
same  as  if  no  bill  had  ever  been  filed,  and  no  injunction  had 


OCTOBER  TERM,  1845.  531 

Chegary  v.  Scofield. 

ever  been  issued  against  him  ;  or  that  he  stands  in  the  same 
situation  as  he  did  before  suit  brought,  and  is  only  doing  what 
he  had  a  right  to  do  before  any  injunction  was  granted  ?  This 
arguni'Mit  would  render  an  appeal  utterly  useless  in  every  case 
of  an  injunction  bill.  A  defendant  might  in  every  case  after 
injunction  dissolved,  and  even  after  appeal  filed,  destroy  the 
property  and  defeat  the  substantial  rights  of  the  party.  But  the 
admission  by  counsel  that  the  Chancellor,  after  a  decree  of  dis- 
solution, upon  an  appeal  being  filed,  might  by  order  renew,  in 
effect,  the  injunction,  in  my  opinion  admits  the  right  of  this 
court  to  do  so. 

But  I  have  put  my  decision  on  other  grounds,  and  have  said 
thus  much  only  to  preclude  any  conclusion  that  I  have  acted 
upon  the  distinction  contended  for  by  the  respondents'  counsel. 
I  go  upon  the  ground  that  the  rule  entered  at  the  last  term  is 
nugatory  and  useless.  If  the  sheriff  has  not  delivered  the 
deed  the  appellant  does  not  want  the  rule,  but  he  wants  one 
in  substance  according  to  the  prayer  of  his  bill.  He  wants  an 
order  in  the  nature  of  an  injunction  restraining  the  sheriff  from 
delivering  the  deed.  Jf  the  sheriff  has  already  delivered  the 
deed,  that  order  must  fall  to  the  ground  as  soon  as  we  hear  the 
appeal  on  the  merits,  whether  we  reverse  or  affirm  the  Chancel- 
lor's order.  If  we  affirm,  then  we  send  the  record  back  to  him, 
with  our  decree"  of  affirmance,  and  nothing  else.  If,  on  the 
other  hand,  we  reverse  the  Chancellor's  decision,  we  must  sencfi 
the  record  back  to  him  with  our  decree  reversing  his  decision,, 
and  restoring  the  very  same  injunction  which  he  erroneously 
dissolved.  In  either  case,  then,  what  becomes  of  this  order 
respecting  the  action  of  ejectment? 

We  must  not  forget  that  we  are  sitting  here  as  a  court  of  ap- 
peal. We  can  do  nothing  but  review  the  particular  order  or 
decree  appealed  from,  except  that,  where  the  Chancellor  has, 
by  his  decree,  given  a  party  a  right  to  a  thing,  we  may  restrain 
him  from  using  it  until  we  can  hear  the  appeal  on  the  merits; 
or,  where  the  Chancellor,  by  his  decree,  has  loosened  a  man's 
hands,  we  may,  by  a  preliminary  order,  tie  them  up  again, 
until  we  can  hear  the  appeal  and  determine  whether  he  ought 
to  be  let  loose  or  not.  But  surely  we  cannot,  either  before  or 
after  we  hear  the  appeal,  make  a  new  and  original  order  more 


532    COURT  OF  ERRORS  AND  APPEALS. 

Chegary  v.  Scofield. 

extensive  than  the  scope  of  the  complainant's  bill,  and  more 
extensive,  too,  than  the  prayer  of  his  bill.  And,  more  espe- 
cially, we  cannot  make  an  order  upon  a  statement  of  facts  not 
contained  in  the  bill,  and  upon  persons  not  parties  to  the 
bill. 

To  put  this  matter  in  a  plainer  light,  if  possible,  we  have 
only  to  ask  ourselves  this  question  :  if  this  cause  had  been  heard 
by  the  Chancellor  on  bill  and  answer,  could  we,  on  this  bill, 
have  made  a  decree  that  the  Morris  Bunk,  Alfred  Ford  and  J. 
R.  Freeman  should  not  be  at  liberty  to  give  the  sheriff's  deed 
in  evidence  upon  the  trial  of  the  ejectment  in  Morris  county  ? 
This  will  not  be  pretended.  Then,  surely,  we  ought  not  to 
make  a  temporary  order  larger  than  the  Chancellor  can  make 
after  hearing  the  cause. 

Let  us  look  at  this  matter  in  another  aspect.  We  are  of 
opinion  that  the  Chancellor  was  wrong  in  dissolving  the  injunc- 
tion which  restrained  the  sheriff  from  delivering  the  deed.  We 
therefore  reverse  his  decree  and  order  that  the  injunction  shall 
be  reinstated  and  stand  in  full  force.  If,  in  addition  to  that  or- 
der, which  we  remit  to  the  Chancellor,  we  annex  to  it  an  order 
that  certain  persons,  by  name,  who  are  lessors  of  the  plaintiff 
in  an  action  of  ejectment,  shall  not  use  that  deed  on  the  trial 
of  the  cause,  what  sort  of  a  record  will  the  proceedings  in  chan- 
cery show  when  they  come  to  be  enrolled?  It  will  furnish  a 
precedent  of  a  new  and  original  injunction  issuing  out  of  this 
court,  against  new  parties,  and  upon  new  facts,  and  this,  too, 
upon  a  mere  appeal  from  a  Chancellor's  order  dissolving  a 
former  injunction. 

And  yet,  if  we  do  not  send  this  order  to  the  Chancellor,  what 
good  will  it  do?  The  very  moment  we  have  heard  the  appeal 
and  sent  the  record  back,  the  plaintiffs  in  ejectment  may  pro- 
ceed, for  the  Chancellor  certainly  cannot  restrain  them,  upon 
this  bill,  from  using  the  deeds  on  the  trials. 

In  every  view  I  can  take  of  this  case,  it  seems  to  me  this 
order  is  an  extra-judicial  proceeding,  and  ought  to  be  vacated. 

WHITEHEAD,  J.,  CARPENTER,  J.,  and  Judges  PORTER, 
SPENCER,  SPEER,  ROBERTSON  and  SCHENCK,  concurred. 


OCTOBER  TERM,  1845.  535 

Chegary  v.  Scofield. 

HAIJSTED,  President. 

This  is  not  the  occasion  for  expressing  any  opinion  on  the 
merits  of  the  case  made  by  the  bill.  The  party  supporting 
the  order  has  had  no  opportunity  of  presenting  to  this  court  the 
question  of  the  propriety  of  opening  the  biddings  in  this  case. 
I  shall  consider  the  order  which  we  are  now  asked  to  vacate  as 
made  in  a  case  fit  to  be  submitted  to  this  court  by  appeal. 

The  power  of  this  court,  or  of  the  Court  of  Chancery,  to  stay 
proceedings  on  an  order  appealed  from,  is  not  denied ;  and  this 
power  extends  to  orders  dissolving  injunctions.  It  was  formerly 
held  that  an  appeal  from  an  order  dissolving  an  injunction  re- 
vived the  injunction.  But,  by  our  present  practice,  an  appeal 
from  an  order  does  uot  stay  proceedings  thereon  without  an 
order  of  the  Court  of  Chancery,  or  of  this  court,  for  that  purpose 
first  had,  and  upon  complying  with  such  terms  as  the  court 
making  the  order  to  stay  proceedings  may  impose. 

Is  the  ease  before  us  a  case  in  which  the  power  to  stay  pro- 
ceedings should  be  exerted  ?  I  answer  this  question  as  if  the 
deed  had  not  been  delivered.  I  think  it  is  a  case  in  which,  if 
the  deed  had  not  been  delivered,  the  Chancellor  or  this  court 
should,  in  the  exercise  of  a  proper  discretion,  stay  the  delivery 
of  the  deed.  And  I  am  of  opinion  that  the  delivery  of  the  deed 
by  the  sheriff,  within  the  time  allowed  for  taking  an  appeal  from 
the  order  dissolving  the  injunction,  the  appeal  having  been  taken 
within  that  time,  has  not  taken  the  case  away  from  the  discre- 
tionary power  of  this  court. 

The  purchaser  was  the  solicitor  of  the  complainant  in  the 
foreclosure  suit,  and  is  a  party  to  the  bill  filed  to  set  aside  that 
sale.  If  he,  immediately  after  the  injunction  was  dissolved, 
apprehending  an  appeal  and  an  application  to  the  Chancellor  or 
to  this  court  to  stay  proceedings,  went  to  his  co-defendant,  the 
sheriff,  and  obtained  the  deed,  the  Chancellor  or  this  court 
could,  I  apprehend,  give  the  effect  to  the  appeal  which  might 
have  been  given  to  it  if  he  had  not  obtained  the  deed.  This 
was  not  denied  on  the  argument.  It  was  not  denied  that  this 
court  could  lay  its  hand  on  the  parties  to  the  suit,  so  as  to  prevent 
them  from  making  advantage  from  any  act  of  their  own  in 
attempting  to  avoid  the  power  of  this  court.  In  a  gross  case 


534        COURT  OF  ERRORS  AND  APPEALS. 

Chegary  v.  Scofield. 

this  court  would  not  suffer  itself  to  be  defeated  of  the  exercise 
of  its  discretion.  This  tests  the  principle. 

If,  then,  Mr.  Scofield  had  thus  got  the  deed  and  brought  eject- 
ment, this  court  could  restrain  him.  This  brings  us  to  what 
his  Honor,  the  Chief  Justice,  seems  to  consider  a  bar  in  our  way  ; 
which  is,  that  Scofield,  as  the  Chief  Justice  seems  to  think  ap- 
pears, has  made  a  deed  to  another,  and  that  other  has  brought 
the  ejectment.  It  seems  to  me  that,  before  this  court,  sitting  in 
equity,  should  stop  at  this,  they  should  be  well  satisfied  that  it 
was  not  a  bar  put  up  by  the  party  himself.  Is  it  gravely  alleged 
here  that  Scofield  has  sold  the  property  ?  Jt  was  alleged  by 
one  of  the  counsel  who  argued  in  support  of  the  order  of  the  last 
term,  that  the  sheriff  had  made  a  deed  to  one  Ford,  a  brother- 
in-law  of  Scofield,  though  the  property  was  struck  off  to  Scofield ; 
and  on  this  the  difficulty  is  started  that  a  new  party  in  interest 
has  come  in. 

There  is  nothing  before  us  to  show  that  a  new  party  in  in- 
terest has  come  in ;  and,  if  a  new  party  in  name  has  been  made, 
it  may  have  been  done  solely  with  the  intention  of  embarrassing 
the  complainant  in  the  apprehended  motion  to  this  court  to  stay 
proceedings.  Counsel  in  this  court  will  certainly  agree  that 
parties  should  stand  openly  here  on  their  case  as  it  really  is,  and 
not  seek  to  evade  the  power  of  this  court  by  a  feigned  move- 
ment. It  must  either  be  a  feigned  movement,  or  it  must  be 
supposed  that,  though  the  property  was  struck  off  to  Scofield,  he 
bid  as  the  agent  of  Ford,  and  that  the  deed  was  therefore  made 
to  Ford. 

The  injunction  was  dissolved  without  answer,  and  no  answer 
is  yet  in,  and  we  are  in  the  dark  as  to  this  matter.  But  if  this 
last  supposition  be  true  that,  though  the  property  was  struck 
off  to  Scofield,  he  bid  for  Ford,  and,  not  letting  his  agency  be 
known,  the  sheriff  struck  it  off  to  Scofield,  and  so  entered  it  in 
his  memorandum  of  sale,  and  the  complainant,  under  these 
circumstances,  filed  his  bill  against  Scofield — (he  could  do  no 
otherwise,  for  he  would  not  know  that  Ford  had  any  interest  in 
the  matter) — I  presume  it  will  not  be  contended  that  such  a 
covert  operation  and  the  making  the  deed  to  Ford  after  the 
complainant's  bill  was  filed,  would  defeat  the  complainant  of 
any  order  which  he  would  be  entitled  to  if  the  deed  had  been 


OCTOBER  TERM,  1845.  535 


Peacock  v.  Ex're  of  Newbold. 


made  to  Scofield  ;  to  say  nothing  of  the  question  whether  the 
sheriff,  under  such  circumstances,  could  legally  make  a  deed  to 
Ford. 

There  is  nothing  before  us  to  enable'  us  to  act  on  any  other 
ground  than  that  Scofield  bid  and  bought  for  himself;  nor 
anything  to  show  that  he  has  sold  the  property  to  Ford  or  any 
other  person.  If  he  bid  as  agent,  there  is  nothing  to  show 
whose  agent  he  was,  whether  Ford's  or  the  bank's;  and  if  he 
bought  as  agent  for  the  bank,  the  sheriff,  certainly,  could  not 
make  the  deed  to  Ford. 

There  is  nothing,  in  my  judgment,  in  this  newly  started 
difficulty  of  a  new  party  in  interest  having  come  in. 

I  am  of  opinion  that  the  order  of  this  court  of  the  last  term 
was  right,  and  that  it  should  not  be  vacated. 

NEVIUS,  J.,  and  RANDOLPH,  J.,  concurred  in  this  opinion. 

Order  vacated. 
CITED  tn  Landrum  v.  Knowles,  8  C.  E.  Or.  594. 


LEVI  PEACOCK  AND  LETTIS  PEACOCK,  HIS  WIFE,  SUING  BY 
BENJAMIN  B.  PEACOCK,  HER  NEXT  FEIEND,  APPEL- 
LANTS, AMD  JOHN  BLACK  AND  THOMAS  BLACK,  EXECU- 
TORS OF  DANIEL  NEWBOLD,  DECEASED,  WHO  WAS  EX- 
ECUTOR OF  JOHN  HOLLINSHEAD,  DECEASED,  APPELLEES. 

Where  a  bill  for  the  recovery  of  a  legacy  bequeathed  to  a  married  woman 
was  filed  thirty-one  years  after  the  death  of  the  testator,  twenty-four  years  after 
the  settlement  of  the  estate,  and  seventeen  years  after  the  death  of  the  execu- 
tor, and  no  cause  shown  for  the  delay,  the  bill  was  dismissed  on  the  ground  of 
the  presumption  of  the  payment  of  the  demand  arising  from  the  time  which 
bad  passed  after  the  right  of  action  accrued  before  suit  brought. 


This  case  i?  reported  in  3  Green's  Chan.  Rep.  61.  It  was 
argued  before  the  Court  of  Errors  and  Appeals  by  G.  D.  Wall, 
for  the  appellants,  who  cited  2  Story's  Eq.  PL,  §  61 ;  2 
Story's  Eq.,  §  402;  2  Kent's  Com.  235;  1  Green's  Cfian. 
Rep.  37;  2  Ibid.  267;  14  Vesey  469;  16  Vesey  413;  1 


536        COURT  OF  ERRORS  AND  APPEALS. 

Peacock  v.  Ex'rs  of  Newbold. 

Green's  Chan.  Rep.  429;  Ibid.  37;  Story's  Eq.,  §  1007;  5 
Vesey  517;  10  Vesey  579;  2  Fesey  673  ;  5  Johns.  Chan.  Rep. 
206  ;  2  Story,  §§  1405,  1406;  13  Vesey  6;  2  JBTenft  Com.  137, 
138;  5  Vesey  511;  9  Fesey  173;  12  Fesey  413  ;  2  Ifad.  CA. 
£.153;  2  Green's  CA.  £.  264,  516;  17  Vesey  96  ;  2  P.  JFms. 
144;  1  I&id.  742;  3  Bro.  Chan.  R.  633;  1  C/tan.  Cases  20, 
26  ;  2  JfoU  5;  2  Fewfr.  345;  3  £ro.  CAan.  639,  note;  2  Story, 
§  1367  ;  19  Vesey  641  ;  4  %  J%.  366,  §§  7,  10;  4  J6M.  242, 
§§  1,  2;  2  Fesey  472;  1  Johns.  Chan.  R.  314;  1  Atk.  467;  1 
Coze's  CAan.  £.28;  3  JoAns.  CA.  .R.  216;  7  Ibid.  90;  2  Fes., 
Jr.,  943;  Cooper's  CAan.  R.  205;  2  Fesey  12,  94;  3  JoAns. 
CAan.  jR.  147. 

H.  W.  Green,  for  the  respondents,  who  cited  Saxton's  Chan. 
£.690; 


The  decree  of  the  Chancellor  was  unanimously  affirmed,  ex- 
cept as  to  costs  ;  and  as  to  costs,  it  was  reversed. 


COURT  OF  ERRORS  AND  APPEALS. 


JANUARY  TERM,  1846. 


ASHER  WILLIAMSON,  APPELLANT,  AND  WILLIAM  H.  JOHN- 
SON AND  JOHN  T.  NEELY,  ADMINISTRATORS  OF  BENJA- 
MIN JOHNSON,  RESPONDENTS. 

1.  An  executor,  with  power  to  sell  lands,  exposed  the  land  for  sale  at  public 
vendue,  on  the  llth  March,  1789,  and  no  person  bidding  what  he  thought  a 
sufficient  price,  requested  his  son  to  bid  for  it,  and  he,  accordingly,  bid  $5.25 
per  acre.     The  executor  postponed  the  sale  on  that  bid,  and  gave  notice  that 
if  any  person  would  come  forward  and  give  more,  he  would  sell  the  land  to 
the  person  offering  the  best  price,  and  that  if  no  person  offered  a  better  price 
within  a  reasonable  time,  he  would  sell  the  same  for  the  sum  so  bid  by  his 
son.     No  subsequent  day  was  fixed  upon  for  further  biddings.     On  the  9th  of 
August,  1792,  the  executor  conveyed  the  land  to  his  son,  at  the  sum  so  bid  by 
him,  and  the  son,  on  the  next  day,  re-conveyed  the  land  to  his  father,  the 
executor.     No  consideration  passed,  nor  any  security  for  any  consideration, 
on  either  conveyance.     The  conveyances  were  set  aside  as  fraudulent ;  and  it 
was  ordered  that  the  land  be  sold  under  the  direction  of  a  master,  and  that 
Hie  proceeds  be  brought  into  court. 

2.  The  land  was  sold  in  1812,  under  the  direction  of  a  master,  and  the  pro- 
ceeds brought  into  court.     It  was  then  ordered  that  the  proceeds  be  paid  to 
the  executor,  on  his  giving  bond  with  surety,  conditioned  for  the  perform- 
ance of  the  trust  reposed  in  him  by  the  will,  (by  which  the  proceeds  were 
to  be  equally  divided  among  the  five  sons  of  the  testator,  of  whom  the  exec- 
utor was  one.)     The  executor,  after  receiving  the  proceeds,  died,  and  ad- 
ministration of  his  personal  estate  was  granted.     In  1820,  one  of  the  five  sons 
died,  and  the  administrator  of  his  personal  estate  caused  a  suit  to  be  prose- 
cuted against  the  surety  on  the  said  bond,  to  recover  the  share  of  the  said  de- 
ceased son ;  and  in  February,  1822,  recovered  final  judgment  for  $2202.46. 

VOL.  i.  2L  537 


538    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

Pending  the  said  suit,  by  deed  dated  June  5th,  1821,  the  surety,  with  his  wife, 
conveyed  his  real  estate  to  his  son  and  daughter  ;  the  condition  expressed  in 
ihe  deed  being  $10,000  ;  the  deed  containing  full  covenants.  This  deed  was 
acknowledged  September  29th,  1821,  and  recorded  October  1st,  1821.  Exe- 
cution was  issued  on  the  said  judgment,  and  in  May,  1823,  all  the  right,  title, 
and  interest  of  the  said  surety  in  the  real  estate  he  had  so  conveyed,  was  wold 
by  the  sheriff  on  the  said  judgment  against  the  surety,  and  the  surety's  s,"id  son 
and  daughter  bid  $3000  for  the  same,  and  it  was  struck  off  to  them.  The 
money  was  paid  to  the  sheriff  by  them,  or  one  of  them  ;  and  the  sheriff  paid 
thereout,  to  the  administrator  of  the  said  deceased  son,  the  full  fifth  for  which 
the  said  judgment  had  been  obtained. 

3.  In  March,  1824,  the  administrator  of  the  executor  and  the  said  surety 
filed  a  bill  of  review,  alleging  errors  in  the  decree  setting  aside  the  deed  made 
by  the  executor  in  August,  1792 ;  and  setting  up,  on  the  part  of  the  surety, 
that  the  executor  had  paid  to  the  said  deceased  son,  in  April,  1792,  a  sum 
equal  to  a  fifth  part  of  the  sum  at  which  the  land  had  been  struck  off  by  the 
executor  to  his  son,  in  March,  1789,  and  had  obtained  the  acquittance  and 
discharge  of  the  said  deceased  son  for  his  share  in  full ;  and  praying  divers 
matters  on  the  part  of  the  said  administrator  of  the  executor ;  and  praying, 
on  the  part  of  the  surety,  that  the  said  judgment  against  him  be  set  aside,  and 
that  the  administrator  of  the  said  deceased  son  might  repay  to  the  said  surety 
all  moneys  received  by  him  over  and  above  what  should  have  been  received 
by  him  for  the  share  of  the  said  deceased  son. 

4.  To  this  bill  a  plea  and  demurrer  were  filed,  which  were  allowed,  on  the 
15th  October,  1827  ;  and  an  order  was  then  made,  giving  leave  to  amend  the 
said  bill  by  striking  out  the  name  of  the  administrator  of  the  executor  as 
complainant,  and  the  names  of  all  the  defendants  except  that  of  the  adminis- 
trator of  the  deceased  son,  and  so  much  of  the  said  bill  as  seeks  a  review  of 
the  said  decree,  so  as  to  confine  the  object  of  the  bill  to  the  relief  sought  by 
the  said  surety  against  the  said  judgment  and  execution  obtained  against  him 
on  the  said  bond.     On  the  28th  January,  1828,  the  surety  filed  his  bill  con- 
fining the  relief  he  sought  as  directed  in  the  said  order.     In  October,  1843, 
upon  the  report  of  a  master,  (to  whom  the  matter  had  been  referred  by  an  in- 
terlocutory decree,)  stating  that,  on  the  2d  April,  1792,  the  executor  had  paid 
the  said  deceased  son  $350.66,  and  that  the  excess  of  the  judgment  against  the 
surety  over  the  amount  due  at  that  time  on  the  share  of  the  said  deceased  son, 
with  the  interest  on  such  excess,  amounted  to  $2256,  a  final  decree  was  made 
by  the  Chancellor  for  that  sum,  against  Asher  Williamson ;  (he  was  the 
administrator  of  the  deceased  son  ;)  and  that  execution  issue  therefor  against 
the  goods  and  chattels,  lands  and  tenements,  of  the  said  Asher  Williamson. 

5.  The  decree  was  affirmed. 

6.  What  proof  held  satisfactory  of  the  existence,  genuineness,  and  loss  of  a 
receipt  or  acquittance  from  the  deceased  son. 

7.  On  the  discovery,  after  a  judgment  against  a  surety,  of  a  receipt  dated 
in  1792,  of  which  the  surety  had  heard  before  the  judgment  was  obtained, 
tint  which  could  not  then  be  found  ;    on'  bill  filed  by  the  surety,  in  1824, 
after  the  judgment  had  been  paid,  it  was  decreed  that  the  plaintiff  in  the 


JANUARY  TERM,  1846.  539 

Williamson  v.  Adm'r.s  of  Johnson. 

judgment  at  law  repay  to  the  mirety  the  excess  of  the  judgment  over  what  it 
should  have  been  after  deducting  the  amount  of  the  receipt,  with  interest 
thereon  from  the  date  thereof,  with  interest  on  such  excess  from  the  date  of 
the  judgment. 

William  Williamson  died  in  1765,  seized  and  possessed  of  a 
farm  containing  two  hundred  and  ninety  acres,  leaving  a  will, 
dated  June  20th,  1764,  by  which,  after  bequeathing  a  legacy 
of  £33  to  his  wife,  he  ordered  that  she  should  have  command 
of  his  plantation,  household -goods,  stock  of  creatures  and  farm- 
ing utensils  during  her  widowhood  ;  and  that  when  she  should 
marry  or  die,  the  executors  of  his  will  should  take  into  their 
possession  all  his  lands  and  personal  property,  and  make  sale 
thereof;  and  that  out  of  the  moneys  thence  arising,  his  execu- 
tors should  pay  to  his  two  daughters,  Margaret  Larue  and 
Micha  Williamson,  £50  each;  and  that  all  the  remainder  should 
be  equally  divided  among  his  sons,  except  that  his  son  Abra- 
ham should  have  £100  more  than  either  of  his  other  sons ;  and 
appointed  his  sons,  Cornelius  Williamson  and  Samuel  William- 
son, executors  of  his  will. 

The  testator  left  his  widow  and  five  sons,  Cornelius,  Samuel, 
John,  William  and  Abraham,  and  his  said  two  daughters. 

Cornelius  refused  to  prove  the  will ;  Samuel,  on  the  16th 
June,  1774,  proved  the  will. 

Samuel,  on  the  llth  March,  1789,  after  advertising,  &c.,  ex- 
posed the  said  farm  for  sale  at  public  vendue,  and  no  person 
bidding  what  he  thought  a  sufficient  price,  he  requested  his 
son,  Cornelius  Williamson,  Jr.,  to  bid  for  the  same,  and  he,  ac- 
cordingly, bid  therefor  42  shillings  per  acre. 

Samuel  did  not  strike  it  off  at  that  time,  but  postponed  the 
sale  on  that  bid,  and  gave  notice  that  if  any  person  would  come 
forward  and  give  more  for  the  said  lands,  he  would  sell  the 
same  to  the  purchaser  offering  the  best  price,  and  that  if  no 
person  offered  a  better  price  in  a  reasonable  time,  he  would  sell 
the  same  for  the  sum  so  bid  by  the  said  Cornelius  Williamson, 
Jr.,  his  son. 

No  person  having  offered  a  higher  price,  Samuel,  on  the  9th 
August,  1792,  conveyed  the  said  farm  to  his  said  son,  for  the 
said  sum  of  forty-two  shillings  an  acre  so  bid  by  him  ;  and  the 
said  Cornelius,  Jr.,  on  the  next  day,  recouveyed  the  said 


540    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adrn'rs  of  Johnson. 

farm  to  the  said  Samuel.      No  consideration  passed,  nor  any 
security  for  any  consideration,  on  either  conveyance. 

Cornelius,  son  of  the  said  testator,  died  in   1807,  leaving  f 
will,  whereby,  after  making  sundry  other  devises  and  bequests 
he  gave  and  devised  the  residue  of  his  estate,  real  and  personal 
to  his  children,  William,  Cornelius,  Asher,  Joseph,  Bernice,  wif 
of  Jacob  Hoppock,  Patience  Williamson   and  Micha  William* 
son;  and  appointed  his  sons,  William,  Cornelius  and  Asher, 
executors  of  his  will ;  and  left  his.  said  children  mentioned  in 
his  will  all  living. 

On  the  20th  December,  1809,  the  children  of  Cornelius  ex- 
hibited their  bill  in  chancery,  setting  forth,  &c.,  &c. ;  and  pray- 
ing that  the  deed  upon  the  said  sale,  made  by  the  said  Samuel 
Williamson,  as  executor  of  the  will  of  the  testator,  William  Wil- 
liamson, the  elder,  might  be  declared  void ;  that  the  power  of 
sale  under  the  said  will  might  be  executed  under  the  sanction 
and  decree  of  the  Court  of  Chancery,  and  the  money  thence 
arising  be  brought  into  court  and  distributed  according  to  the 
said  will ;  and  that  the  said  Samuel  might  account  with  the 
said  complainants  for  the  rents,  issues  and  profits  of  the  farm, 
and  pay  to  the  complainants  their  proportion,  &c. 

On  the  10th  July,  1810,  the  said  Samuel  filed  his  answer  to 
the  said  bill. 

A  replication  was  filed  and  witnesses  were  examined. 

On  the  21st  September,  1811,  Joseph  Bloomfield,  Chancellor, 
made  an  interlocutory  decree  in  the  said  cause,  by  which,  among 
other  things,  he  ordered,  adjudged  and  decreed, 

1.  That  the  said  pretended  sale  by  the  said  Samuel  William- 
son to  the  said  Cornelius  Williamson,  Jr.,  be,  and  the  same  is, 
thereby  declared  to  be  void,  fraudulent  and  of  no  effect. 

2.  That  the  deeds  of  August  9th,  1792,  from  the  said  Samuel 
Williamson  to  his  son,  Cornelius  Williamson,  Jr.,  and  from  the 
said  Cornelius  Williamson,  Jr.,  to  the  said  Samuel  are,  and  the 
same  are  thereby  declared,  void  and  fraudulent,  and  are  alto- 
gether set  aside  and  vacated. 

3.  That  the  said  Samuel  Williamson,  executor  of  William 
Williamson,  deceased,  execute    the   trust   reposed    in  him,  by 
the  sale  of  the  real  estate  of  the  said   testator.      And,  foras- 
much as  the  said  Samuel  Williamson  has  been  guilty  of  fraud 


JANUARY  TERM,  1846.  541 

Williamson  v.  Adm'rs  of  Johnson. 

in  the  premises  it  is  ordered  that  he  make  the  sale  under  the 
direction  of  James  Linn,  esquire,  one  of  the  masters  of  the 
court,  who  is  hereby  authorized  to  direct  the  said  Samuel 
Williamson  in  all  matters  in  relation  to  the  advertising  and  sell- 
ing the  said  premises,  and  the  conditions  on  which  the  sale 
shall  be  made,  to  the  best  advantage  of  those  concerned,  and 
that  the  said  master  make  report  to  the  court  when  the  sale 
shall  have  been  made,  and  that  the  moneys  arising  therefrom, 
or  the  securities  taken  for  the  same,  be  brought  into  court. 

4.  That  it  be  also  referred  to  the  said  master  to  take  an  ac- 
count of  the  rents,  issues  and  profits  of  the  said  real  estate  from 
the  time  the  said  Samuel  Williamson  has  had  possession  there- 
of, to  wit,  the  llth  of  March,  1789,  until  the  time  of  the  taking 
of  the  said  account,  and  also  of  substantial  and  permanent 
improvements  made  by  the  said  Samuel  Williamson  thereon, 
and  that  the  master  make  report,  &c.  And  all  further  questions 
and  equity  arising  in  the  cause  are  reserved  until  the  coming 
in  of  the  master's  report ;  particularly  the  questions  of  costs  and 
the  distribution  of  the  proceeds. 

In  pursuance  of  the  said  decree,  the  master,  on  or  about  the 
24th  October,  1812,  reported  to  the  court,  among  other  things, 
that  the  rents  from  the  time  the  said  Samuel  Williamson  had 
had  possession,  twenty-three  years,  amounted  to  $2760,  and 
that  $505  should  be  credited  for  improvements  put  on  the  farm 
by  the  said  Samuel. 

Exceptions  having  been  taken  to  the  said  report,  and  submit- 
ted to  the  court,  Aaron  Ogden,  Chancellor,  in  March,  1813, 
made  an  order  confirming  the  said  report. 

In  pursuance  of  the  said  interlocutory  decree  made  on  the 
21st  September,  1811,  the  said  Samuel  Williamson,  as  execu- 
tor of  the  will  of  the  said  William  Williamson,  deceased,  sold 
the  said  farm,  under  the  direction  of  the  said  master,  for 
$7923.31  ;  and  the  moneys  thence  arising,  or  the  securities 
taken  therefor,  being  brought  into  court,  the  said  cause  again 
came  on  to  be  heard  before  Chancellor  Ogden,  in  September, 
1813,  upon  the  equity  reserved  and  all  questions  thereon,  and 
on  the  22d  October,  1813,  it  was  by  the  said  Chancellor  ordered, 
adjudged  and  decreed  that  James  Linn,  esquire,  the  clerk  of 
the  court,  should,  without  any  further  account,  pay,  from  the 


542         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

moneys  in  his  hands  arising  from  the  sale  of  the  said  premises, 
to  the  executors  or  personal  representatives  of  the  said  Cornelius 
Williamson,  deceased,  the  one-fifth  of  the  sum  $10,178.21, 
being  the  amount  of  the  proceeds  of  the  said  sale  and  net  rents 
of  the  said  premises,  after  making  the  following  deductions  and 
allowances,  to  wit : 

From  the  whole  proceeds  of  said  sales 
and  net  rents $10,178  21 

Deduct,  1st.  £100  devised  by  the  testa- 
tor, William  Williamson,  deceased,  to  his 
two  daughters ;  £100  devised  by  the  said 
testator  to  his  son  Abraham,  with  interest 
from  1792  to  1812,  being  twenty  years;  all 
which  amount  to $1,280  00 

2d.  The  account  of  James  Linn,  Esq., 
for  superintending  the  making  the  sales 

aforesaid 173  80 

1,453  80 


$8,724  41 

Divide  the  remaining  sum  by  five,  which  will  give 
the  one-fifth  part,  or  share  of  the  said  Cornelius 
Williamson,  deceased,  amounting  to 1,744  88 

3d.  From  which  deduct  the  proportion  of  the  said 
Cornelius  Williamson,  deceased,  of  the  sale  first  made 
by  the  said  Samuel  Williamson,  which  proportion 
he  must  be  presumed  to  have  paid,  according  to  his 
answer,  or  settled  in  some  other  way,  after  a  lapse  of 
20  years;  which,  with  20  years'  interest,  amounts  to  523  33 

Net  amount  due  to  the  personal  representatives 

of  Cornelius  Williamson $1,221  55 

Which  sum  of  $1221.55  was  ordered,  adjudged  and  decreed 
to  be  paid  by  the  said  James  Linn,  out  of  the  moneys  in  his 
hands  as  aforesaid,  to  the  executors  or  personal  representatives 
of  the  said  Cornelius  Williamson,  deceased,  as  assets  of  his  es- 
tate? And  it  was  further  ordered  that  the  said  James  Linn  do 
pay,  from  the  moneys  in  his  hands  as  aforesaid,  the  costs  of  the 
said  complainants  to  be  taxed,  and  that  he  be  allowed  to  retain 
in  his  hands  $173.80  for  his  charges  in  superintending  the  said 
sales. 


JANUARY  TERM,  1846.  543 

Williamson  v.  Adm'rs  of  Johnson. 

And  it  was  further  ordered,  adjudged  and  decreed  that  the 
said  James  Linn  do  pay  over  to  the  said  defendant,  Samuel 
Williamson,  executor  as  aforesaid,  the  residue  of  the  moneys 
arising  from  the  said  sales,  upon  security  to  be  given  by  bond 
to  the  Governor  and  Chancellor  of  the  state  for  the  time  being, 
in  the  penal  sum  of  $5000,  conditioned  for  the  faithful  per- 
formance of  the  trust  reposed  in  him  by  the  will  of  the  said  tes- 
tator, William  Williamson,  deceased,  to  be  signed  by  him  and 
one  surety,  to  be  approved  by  the  said  James  Linn,  who  should 
make  report  of  his  doings  therein  and  file  the  said  bond  on  the 
files  of  the  court. 

On  a  petition  for  a  re-hearing  in  the  said  cause,  a  re-hearing 
was  ordered,  and  the  cause  came  OH  to  be  re-heard  on  the  1st 
June,  1814;  and,  on  the  llth  of  that  month,  it  was,  by  Wil- 
liam S.  Pennington,  Chancellor,  ordered,  adjudged  and  decreed, 
among  other  things,  that  the  decree  made  by  tlie  late  Chancel- 
lor, on  the  hearing  of  the  said  cause  on  the  equity  reserved,  ou 
the  22d  of  October,  1813,  be  altered,  amended  and  rectified  by 
striking  therefrom  the  item  whereby  the  sum  of  $523.33  was 
directed  to  be  deducted  from  the  sura  of  $1744.88;  and  that 
the  said  decree  be  in  all  other  parts  ratified  and  confirmed. 

Of  the  moneys  arising  from  the  sale,  so  ordered  to  be  brought 
into  court,  the  said  Linn,  clerk  of  said  court,  acknowledged 
the  receipt  of  $6924.47. 

Of  the  said  sum,  Linn  paid  to  Asher  Williamson, 
one  of  the  executors  of  the  said  Cornelius  William- 
son, deceased,  pursuant  to  the  decree $1,744  88 

And  paid  the  complainant's  costs 202  23 

And,  after  retaining  hi.s  fees  as  master 173  80 

And  the  fees  allowed  to  him  by  law  ou  the  mo- 
ney paid  into  court 69  24 


$2,190  15 

He  paid,  on  the  25th  June,  1814,  to  the  said  Samuel  Wil- 
liamson, executor  of  William  Williamson,  deceased,  the  sum 
of  $4734.32,  the  balance  of  the  said  sum  of  $6924.47. 

Whereupon  the  said  Samuel  Williamson,  together  with  Ben- 
jamin Johnson  as  his  surety  approved  by  the  said  James  Linn, 
executed  and  delivered  a  bond,  dated  June  25th,  1814,  to  Wil- 
liam S.  Peuuington,  Governor  and  Chancellor  of  the  State  of 


544         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

New  Jersey,  in  the  penal  sum  of  $5000,  conditioned  that  the 
said  Samuel  Williamson  should  faithfully  perform  the  trust  re- 
posed in  him  by  the  will  of  the  said  William  Williamson,  de- 
ceased, which  bond  was  filed  in  the  office  of  the  clerk  of  the 
Court  of  Chancery. 

On  the  20th  December,  1820,  William  Williamson,  son  of 
the  testator,  being  dead,  Asher  Williamson  applied  for  and  ob- 
tained letters  of  administration  of  the  estate  of  the  said  William 
Williamson  the  younger,  deceased  ;  and  afterwards,  as  such 
administrator,  caused  an  action  to  be  commenced  in  the  Supreme 
Court,  in  the  name  of  William  S.  Pennington,  late  Governor 
and  Chancellor,  for  the  benefit  of  the  said  Asher  as  such  admin- 
istrator, against  Benjamin  Johnson,  as  survivor  of  said  Samuel 
Williamson,  deceased,  who  was.  then  dead,  for  $5000,  and  de- 
clared upon  said  bond  given  by  said  Samuel  Williamson  and 
Benjamin  Johnson  to  the  said  William  S.  Peuuington,  Governor 
and  Chancellor  as  aforesaid,  in  pursuance  of  the  said  decree  of 
October  22d,  1813 ;  and  Johnson  not  having  appeared  or 
pleaded  in  said  cause,  a  judgment  by  default  was  entered  against 
him,  in  November,  1821,  whereupon  a  writ  of  inquiry  of 
damages  was  awarded,  which  was  executed  on  the  25th  Feb- 
ruary, 1822,  and  an  inquisition  finding  $2202.46  damages  be- 
sides costs,  made  and  returned  with  the  said  writ ;  and  on  the 
27th  of  that  mouth,  final  judgment  was  entered  in  the  suit, 
against  Johnson,  for  the  penal  sum  of  $5000  debt,  and  $49.30 
costs;  and  the  said  Asher  caused  execution. to  be  issued,  in  the 
name  of  the  plaintiff  in  said  cause,  against  the  goods  and  lands 
of  the  said  Benjamin  Johnson,  endorsed  to  levy  the  damages 
BO  assessed  as  aforesaid  and  costs,  with  interest  from  February 
26th,  1822,  which  execution  was  delivered  to  Edward  Wel- 
sted,  sheriff  of  Hunterdon,  on  the  15th  March,  1822,  by  vir- 
tue of  which  the  said  sheriff  levied  on  three  tracts  of  laud ;  the 
first  containing  170  acres,  more  or  less,  whereon  Johnson  re- 
sided ;  the  second  containing  218  acres,  more  or  less,  and  the 
third  being  a  tavern-house  and  lot  of  two  acres  at  New  Market. 

Pending  the  said  suit,  by  deed  dated  June  5th,  1821,  Johnson, 
with  his  wife,  conveyed  all  the  said  three  tracts  of  land  to  Wil- 
liam H.  Johnson  and  Clarissa  Johnson,  his  son  and  daughter; 
the  consideration  expressed  iu  the  deed  being  $10,000,  the  deed 


JANUARY  TERM,  1840.  515 

Williamson  v.  Adrn'ra  of  Johnson. 

containing  full  covenants.  This  deed  was  acknowledged  Sep- 
tember 21st,  1821,  and  recorded  October  1st,  1821. 

In  May,  1823,  the  sheriff,  under  the  said  execution  and  levy, 
exposed  the  said  three  tracts  of  land  for  sale.  He  first  tried  to 
sell  them  separately,  but  no  person  appearing  willing  to  bid  for 
either  of  them  in  that  way,  he  exposed  them  for  sale  all  together, 
atone  bidding,  and  the  said  William  H.  Johnson,  for  himself 
and  his  said  sister,  bid  $3000,  and  the  lauds  were  struck  off  tc 
them. 

The  money  was  paid  to  the  sheriff  by  them,  or  one  of  them, 
and  the  sheriff,  out  of  the  money,  paid  to  Asher  Williamson 
as  administrator  of  the  deceased  son,  William  Williamson,  the 
amount  of  the  share  of  the  said  deceased  son,  for  which  the 
said  judgment  had  been  obtained. 

Samuel  Williamson,  the  executor,  had  died  in  1821,  and 
administration  of  his  personal  estate  had  been  granted  to  Abra- 
ham R.  Sutphen.  On  the  6th  of  March,  1824,  Sutphen,  as 
administrator  of  the  said  executor,  and  Johnson  filed  a  bill  of 
review,  assigning  errors  in  the  said  decree  made  by  Chancellor 
Blootnfield,  in  1811,  and  in  the  said  decree  made  by  Chancellor 
Ogden,  in  1813,  and  in  the  said  decree  made  by  Chancellor 
William  S.  Pennington,  in  1814,  and  praying  that  the  said 
decrees  might  be  reversed  or  corrected.  Asher  Williamson, Cor- 
nelius Williamson,  and  William  Williamsou  were  the  defend- 
ants in  this  bill. 

This  bill  also  prayed,  upon  certain  allegations  made  therein, 
that,  the  executors  of  Cornelius  Williamson,  deceased,  might 
come  to  an  account  with  the  said  Sutphen,  administrator  of  the 
said  Samuel  Williamson,  touching  the  moneys  received  by  them 
from,  and  to  the  use  of  the  said  Samuel,  and  might  refund 
all  moneys  by  them  received,  over  and  above  what  was  justly 
due  and  ought  to  have  been  received  by  them,  and  touch- 
ing other  matters  therein  stated,  and  that  the  said  judg- 
ment at  law  in  favor  of  William  S.  Pennington,  late  gov- 
ernor, &c.,  to  the  uee  of  the  said  Asher,  as  administrator  of 
William  Williamson,  deceased,  against  Johnson,  predicated  upon 
the  said  decrees  and  the  bond  aforesaid,  might  be  set  aside,  and 
that  the  said  Ashtr  Wi)liamson  might  account  touching  the 
moneys  so  collected  and  received  by  him  as  administrator  of 


546         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

William  Williamson,  the  younger,  deceased,  and  might  repay 
all  moneys  so  by  hiui  received,  over  and  above  what  ought  to 
have  been  demanded  and  received  by  him  in  the  said  action  on 
the  said  bond  against  the  said  Johnson. 

On  the  13th  of  October,  J824,  the  defendants  filed  their  plea 
and  demurrer  to  the  said  bill.  For  plea,  they  say  that  the  said, 
cause  in  the  bill  mentioned,  in  which  William  Williamson,  Cor- 
nelius Williamson,  Asher  Williamson,  Joseph  Williamson,  Hop- 
pock  and  wife,  Patience  and  Micha  Williamson  were  complain- 
ants, and  the  said  Samuel  Williamson,  defendant,  came  on  to  be 
heard  in  September,  1811,  before  Chancellor  Bloomfield,  when 
the  said  Chancellor  made  his  decretal  order  as  follows  (setting 
out,  at  length,  the  said  decretal  order.)  That  James  Linn,  the 
master  named  in  the  said  decretal  order,  on  the  24th  of  October, 
1812,  made  his  report  as  follows  (setting  out  the  master's  report 
at  length.) 

That  the  said  report  was  confirmed  by  Chancellor  Ogden,  in 
March,  1813.  That  the  said  master,  under  whose  direction  the 
said  real  estate  was  sold,  made  his  report  of  the  said  sale  as 
follows  (setting  out  the  master's  report  of  the  sale.) 

That  the  said  cause  came  on  for  final  hearing  on  'the  equities 
reserved,  in  September,  1813,  before  Chancellor  Ogden,  who,  on 
the  22d  of  October,  1813-  made  his  final  decree  as  follows  (set- 
ting out  the  said  final  decree  at  length.) 

That  the  complainants,  being  dissatisfied  with  the  said  decree 
on  the  equity  reserved,  filed  their  petition  for  a  re-hearing  of 
the  cause,  on  the  matters  in  the  said  petition  set  forth,  and  a  re- 
hearing of  the  cause  having  been  ordered,  the  same  came  on  to 
be  re-heard,  on  the  said  petition,  before  Chancellor  William  S. 
Pennington,  in  June,  1814,  who  made  his  decree  on  the  said  re- 
hearing as  follows  (setting  forth  the  decree  at  length.)  And  the 
defendants  aver  that  the  said  decretal  orders  and  final  decree 

were  duly  signed  by  the  Chancellor,  on  the day  of , 

18 — ,  and  entered,  enrolled,  and  recorded  according  to  law. 

.  And  these  defendants,  Asher  Williamson,  William  William- 
son, and  Cornelius  Williamson,  do  demur  on  the  law  of  the  said 
bill  of  review  of  the  said  complainants,  and  for  causes  of 
demurrer  show  that  the  said  decree  is  free  from  the  errors  com- 
plained of. 


JANUARY  TERM,  1846.  547 

Williamson  v.  Adm'ra  of  Johnson. 

That  the  said  bill  of  review  was  filed  without  leave  of  the 
court  first  obtained;  without  any  affidavits  verifying  the  truth 
of  the  facts  contained  therein,  and  without  the  complainants 
having  made  any  deposit  to  answer  the  costs  these  defendants 
would  incur  thereupon. 

That  the  said  bill  does  not  set  out  the  decree  complained  of  in 
such  manner  as  the  same  should  have  been  set  out,  but  a  long 
allegation  of  facts,  some  of  which  are  charged  to  have  existed 
before,  and  others  to  have  happened  since  the  making  of  the  said 
decree,  which  are  irrelevant  and  unfit  to  be  introduced  into  a 
bill  of  review. 

That  Benjamin  Johnson,  one  of  the  complainants,  is  a  stran- 
ger to  the  decree  complained  of,  being  neither  party  nor  privy 
thereto. 

That  the  bill  is  multifarious;  several  distinct  matters  having 
no  connection  with  each  other,  and  affecting  the  two  complain- 
ants separately  and  distinctly,  were  inserted  in  the  bill. 

That  Joseph  Williamson,  Patience  Williamson  and  Micha 
Williamson,  parties  complainant  to  the  decree  sought  to  be  re- 
versed, and  interested  therein,  are  not  made  parties  to  the  said 
bill. 

Wherefore,  and  for  divers  other  errors  and  imperfections  ap- 
pearing on  the  said  bill,  these  defendants  do  demur,  and  pray 
that  they  may  not  be  compelled  further  to  answer  the  said  bill; 
that  the  enrollment  of  the  said  decree  may  not  be  opened;  and 
that  the  said  bill  of  review  may  be  dismissed,  with  costs. 

R.  Stockton,  of  counsel  with  the  defendants. 

The  Chancellor  having  decided  that  the  plea  and  demurrer  be 
allowed,  it  was,  on  the  15th  October,  1827,  ordered  by  the 
Chancellor  that  leave  be  given  to  amend  the  bill  of  complaint 
by  striking  out  the  name  of  Abraham  R.  Sutphen,  as  a  com- 
plainant, anil  William  Williamson  and  Cornelius  Williamson, 
as  defendants,  and  also  so  much  of  the  said  bill  as  seeks  a  re- 
view of  the  decree  between  William  Williamson  and  others, 
complainants,  and  Samuel  Williamson,  defendant,  in  the  said 
bill  mentioned  and  set  forth,  and  all  other  irrelevant  matter  in 
the  said  bill  contained  ;  so  as  to  confine  the  object  of  the  bill  to 
the  relief  of  Benjamin  Johnson  against  a  judgment  and  exe- 
cution in  the  bill  mentioned  to  have  been  obtained  against  him 


548         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

in  the  Supreme  Court,  by  the  said  Asher  Williamson,  defendant 
in  this  cause,  upon  the  said  complainant  paying  to  the  defend- 
ant's solicitor  the  costs  of  the  plea,  demurrer  and  argument  in 
this  case,  and  amending  the  defendant's  copy  of  the  bill  gratis. 

On  the  9th  January,  1828,  Benjamin  Johnson  filed  his  bill. 
The  bill  is  entirely  re-drawn,  under  the  leave  so  given,  and  is  in 
form  an  original  bill,  by  Benjamin  Johnson,  complainant,  against 
Asher  Williamson,  defendant. 

The  bill  then  states  the  will  of  William  Williamson  the 
elder,  and  the  probate  thereof  by  Samuel  Williamson,  (Corne- 
lius, the  other  executor  named  therein,  declining  to  act,)  the 
exposing  of  the  farm  for  sale  by  Samuel,  in  1789,  the  striking 
it  off  to  his  son,  the  deed  from  Samuel  to  his  said  son,  in  Au- 
gust. 1792,  and  the  reconveyance  on  the  same  day  by  his  said 
son  to  him;  alleges  that  on  the  2d  April,  1792,  Samuel,  the 
executor,  paid  to  William  Williamson,  a  son  and  devisee  of  his 
father,  William  Williamson,  the  testator,  his  share  of  the  sum 
for  which  said  farm  had  been  so  struck  off  by  the  executor  to 
his  son,  and  that  the  said  William,  the  younger,  thereupon  exe- 
cuted to  the  said  executor  an  acquittance  and  discharge  in  full 
for  his  share,  dated  April  2d,  1792;  states  the  death  of  Corne- 
lius Williamson,  son  of  the  testator,  leaving  a  will  devising  his 
estate  to  his  children,  viz.,  William,  Cornelius,  Asher,  and  Jo- 
seph Williamson,  Bernice,  wife  of  Jacob  Hoppock,  Patience 
Williamson  and  Micha  Williamson,  and  appointing  his  sons, 
Cornelius  Williamson,  Asher  Williamson  and  William  William- 
son executors  of  his  will ;  that  these  children,  devisees  and  ex- 
ecutors of  Cornelius  Williamson,  deceased,  on  the  20th  Decem- 
ber, 1809,  filed  their  bill  against  the  said  Samuel  Williamson, 
executor  of  the  will  of  William  Williamson,  the  elder,  praying 
that  the  said  deeds  from  him  to  his  said  son  and  from  his  said 
son  to  him  be  set  aside,  and  that  the  said  real  estate  might  be 
sold  under  the  direction  of  the  court,  and  that  Samuel  might 
account  for  the  rents  and  profits  thereof;  setting  out  the  answer 
and  proceedings  on  that  bill,  and  the  decrees  hereinbefore 
stated  stating  that  Samuel  Williamson,  the  executor,  died 
about  April  1st,  1821,  intestate,  and  leaving  very  little  property, 
and  that  no  person  administered  on  his  estate  until  1823,  after 
the  judgment  against  Johnson,  when  administration  was  grant- 


JANUARY  TERM,  1846.  549 

Williamson  v.  Adm'rs  of  Johnson. 

ed  to  Abraham  R.  Sutphen  ;  that  William  Williamson,  son  of 
William  Williamson,  the  testator,  having  removed  to  the  west- 
ern country,  where  he  died,  Asher  Williamson,  on  the  20th 
December,  1820,  obtained  letters  of  administration  of  the  per- 
sonal estate  of  said  William  Williamson  the  younger,  deceased, 
and  brought  suit  against  the  complainant  Johnson  on  the  said 
bond  in  which  he  was  surety,  as  aforesaid,  for  the  said  Samuel 
as  executor  as  aforesaid,  in  the  name  of  William  S.  Pennington, 
Governor  and  Chancellor,  for  the  use  of  the  said  Asher  as  ad- 
ministrator as  aforesaid  ;  stating  the  judgment  obtained  against 
this  complainant  in  that  suit;  stating  that  the  sheriff,  by  virtue 
of  an  execution  issued  on  that  judgment,  advertised  the  property 
and  estate  of  him,  the  complainant,  Benjamin  Johnson,  on  the 
2d  September,  1822 ;  and  that  the  said  Asher  Williamson  bid- 
ding for  the  homestead  farm  of  170  acres  the  sum  of  $1310,  for 
the  tavern  house  and  lot  $405,  and  for  another  farm  of  218 
acres  $600,  the  same  were  struck  off  to  him  for  the  sums  so  bid, 
and  the  sheriff  executed  a  deed  to  the  said  Asher,  and  delivered 
it  to  him  ;  that  shortly  afterwards  a  defect  was  discovered  in  the 
advertisement  of  the  said  property  for  sale,  and  the  said  sheriff, 
by  the  direction  of  the  said  Asher,  again  advertised  the  said 
property  for  sale,  and,  on  the  14th  May,  1823,  again  exposed 
the  same  for  sale,  and  William  H.  Johnson  and  Clarissa  John- 
son bidding  $3000  for  the  said  premises  all  together,  the  same 
were  struck  off  to  them  for  that  price,  and  the  sheriff  conveyed 
it  to  them  ;  and  that,  out  of  the  purchase  money  received  of  the 
said  William  and  Clarissa,  the  sheriff  paid  to  the  said  Asher 
Williamson,  as  administrator  of  the  said  William  Williamson 
the  younger,  deceased,  the  whole  amount  of  the  debt,  interest 
and  costs  on  the  said  judgment  and  execution  against  the  com- 
plainant, Benjamin  Johnson. 

The  bill  states  that,  at  the  commencement  of  the  said  suit 
against  the  complainant,  and  until  after  the  judgment  and  exe- 
cution and  both  the  said  sales  had  taken  place  and  the  said 
execution  was  paid  off  and  satisfied,  administration  of  the  estate 
of  the  said  Samuel  Williamson  had  not  been  granted,  and  there 
was  no  personal  representative  of  the  said  Samuel  to  investigate 
the  state  of  his  affairs,  or  having  the  custody  or  knowledge  of 
bis  papers.  That  the  complainant  was  ignorant  of  the  claim  of 


550         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

the  said  Asher  Williamson,  as  administrator  of  said  William 
Williamson  the  younger,  deceased,  against  the  said  Samuel 
Williamson  ;  that  he  had  no  access  to,  nor  did  he  know  where 
to  find  the  papers  of  the  said  Samuel  in  relation  to  the  said 
claim,  or  any  documents  or  vouchers  to  enable  him  to  contest 
or  make  any  defence  against  the  same.  That  he  had  heard 
that  the  said  Samuel,  in  his  lifetime,  and  in  the  lifetime  of  the 
said  William  Williamson  the  younger,  had  made  a  payment  to 
the  said  William  Williamson  the  younger,  for  or  on  account  of 
his  share  of  the  estate  of  the  said  William  Williamson  the  eld^er, 
deceased,  and  that  there  had  been  some  receipt,  acquittance  or 
discharge  for  the  same  in  the  hands  of  the  said  Samuel  Wil- 
liamson, deceased,  in  his  lifetime,  but  whether  the  same  were 
yet  in  existence,  or  where  or  in  whose  custody  the  same  was  to 
be  found,  or  by  whom  such  payments  could  be  proved,  the  com- 
plainant knew  not.  But  he  had  also  heard  that  the  payment  of 
the  money  and  the  existence  of  the  receipt  and  discharge  there- 
for were  well  known  to  the  said  Asher  Williamson,  who  had 
repeatedly  admitted  the  fact  that  a  payment  had  been  made,  and 
after  the  commencement  of  the  suit  against  this  complainant, 
and  before  the  execution  of  the  writ  of  inquiry  therein,  he  also 
admitted  that  there  was  only  a  balance  of  $1000  or  $1200  due 
to  the  said  William  Williamson  the  younger,  deceased,  on  his 
share,  which  was  all  he  expected  to  recover  of  this  complainant. 
That  the  complainant  expected  that  the  said  Asher  Williamson 
had  made  a  correct  calculation  of  the  sum  due  after  deducting 
the  payment,  and  intended  to  claim  no  more;  and  not  being 
able  to  deny  his  bond,  and  not  being  in  possession  of  any  evi- 
dence, or  knowing  where  to  obtain  it,  to  prove  the  said  payment, 
or  ascertain  the  amount,  and  relying  on  the  declaration  of  the 
said  Asher  that  he  only  claimed  the  balance  due  after  deducting 
said  payment,  the  complainant  did  not  undertake  to  contest  the 
justice  or  amount  of  his  claim. 

That  the  said  Asher  Williamson,  after  the  decease  of  the  said 
Samuel  Williamson,  having  gone  to  the  house  of  Abraham 
Terhune,  where  the  said  Samuel  died,  and  examined  his  pa- 
pers remaining  there,  and  finding  that  no  such  acquittance  or 
discharge  was  among  them,  and  supposing  the  same  to  be  lost, 
and  that  no  proof  of  such  payment  could  be  produced,  fraudu- 


JANUARY  TERM,  1846.  5ol 

Williamson  v.  Adm'ra  of  Johnson. 

ently  and  deceitfully  denied  that  any  payment  had  been  made, 
nd  did  falsely  and  fraudulently  conceal  the  same  from  the 
knowledge  of  the  jurors  of  the  said  inquest,  and  did  then  and 
there  exhibit,  or  cause  to  be  exhibited,  a  claim  for  the  whole 
amount  of  the  share  of  the  said  William  Williamson  the  younger, 
deceased,  of  the  moneys  arising  from  the  second  sale  and  net 
rents  of  the  said  farm,  upon  the  footing  of  the  before-mentioned 
decree  of  October,  1813,  with  the  interest  thereon,  without 
allowing  any  credit  for  the  said  payment,  the  whole  amount 
•  f  which  said  claim  was  accordingly  assessed  and  found  for  the 
plaintiff  by  the  said  inquest,  he,  the  said  Asher,  well  knowing, 
at  the  time,  that  such  payment  had  been  made  and  acquittance 
given,  that  the  same  ought  to  be  credited,  and  that  the  sum  so 
claimed  and  found  was  not  due  and  owing  by  the  said  Samuel 
Williamson,  as  executor  as  aforesaid,  to  the  said  Asher,  as 
administrator  of  the  said  William  Williamson  the  younger, 
Deceased ;  that  the  complainant,  not  being  present  at  the  said 
inquest,  had  no  knowledge  of  the  sum  thus  fraudulently  claimed, 
and  which  was  found  by  the  said  inquest,  until  after  judgment 
was  entered  and  execution  issued  thereon ;  that  he  was  deceived 
and  surprised  by  the  conduct  of  the  said  Asher  in  the  prem- 
ises. 

That  after  the  appointment  of  the  said  Abraham  R.  Sutphen 
as  administrator  of  the  said  Samuel  Williamson,  the  complain- 
ant applied  to  him ;  that  they  searched  among  the  papers  left 
by  the  said  Samuel  at  the  place  where  he  died,  for  the  said 
receipt  or  discharge,  but  that  the  same  could  not  be  found  ;  that 
they  searched  at  other  places  where  they  supposed  it  might  pos- 
sibly be,  but  could  not  find  the  same  until  the  10th  day  of  June, 
1823,  where  they  first  discovered  the  same  among  some  papers 
in  possession  of  Petei*  I.  Clark,  esquire,  into  whose  hands  they 
had  accidentally  come  after  the  decease  of  George  C.  Maxwell, 
esquire,  who  had  had  them  in  his  hands  in  the  lifetime  of  the 
Baid  Samuel. 

That  the  said  receipt,  acquittance,  and  discharge  being  dated 
the  2d  day  of  April,  1792,  given  by  the  said  William  William- 
son, the  son  and  one  of  the  devisees  of  the  said  William  Wil- 
liamson, deceased,  to  the  said  Samuel  Williamson,  deceased,  for 
£131  10s.,  in  full  of  his  legacy  or  share  of  the  moneys  arising 


552         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

from  the  first  sale  of  the  farm  of  the  said  testator,  hath  since 
been  mislaid  or  lost,  so  that  the  cgmplainant  is  not  able  to  pro- 
duce the  same  in  court,  but  hopes  to  be  able  to  make  satisfac- 
tory proof  thereof. 

That  the  said  Asher  Williamson,  administrator  as  aforesaid, 
obtained  the  said  judgment  and  execution  against  the  com- 
plainant for  a  much  larger  sum  than  was  actually  due,  by  such 
fraud,  deceit,  concealment,  and  surprise  upon  the  complainant, 
at  a  time  when  the  complainant  had  it  not  in  his  power  to  prove 
the  said  payment  by  the  production  of  said  receipt,  or  to  ascer- 
tain the  amount  thereof,  and,  having  since  discovered  the  said 
receipt,  the  complainant  had  well  hoped  that  the  said  Asher 
Williamson  would  have  come  to  an  account  and  settlement  with 
the  complainant  touching  and  concerning  the  moneys  so  recov- 
ered and  received  by  him,  as  administrator  of  the  said  William 
Williamson  the  younger,  deceased,  of  the  complainant,  and 
would  have  refunded  to  the  complainant  all  the  moneys  so 
recovered,  over  and  above  what  was  justly  due  and  owing,  and 
ought  to  have  been  demanded  and  received  by  him  on  that 
account. 

The  bill  prays  that  the  said  judgment  at  law,  at  the  suit  of 
the  said  William  S.  Peunington,  late  Governor  and  Chancellor, 
to  the  use  of  the  said  Asher  Williamson,  as  adminstrator  of 
the  said  William  Williamson  the  younger,  deceased,  against 
the  complainant,  may  be  set  aside  and  declared  null  and  void, 
as  obtained  by  fraud,  surprise,  and  mistake,  or  that,  notwith- 
standing such  judgment,  the  said  Asher  may  come  to  an 
account  with  the  complainant  touching  and  concerning  the 
moneys  collected  and  received  by  the  said  Asher,  as  aforesaid, 
upon  such  judgment,  and  that  the  said  Asher  Williamson  may 
be  decreed  to  refund  and  repay  to  the  complainant  all  the  mon- 
eys so  recovered  and  nceived,  over  and  above  what  was  actually 
due  and  owing,  and  ought  to  have  been  recovered  in  said  action 
for  the  share  of  the  said  William  Williamson  the  younger, 
deceased,  in  the  proceeds  of  the  second  sale  and  net  rents  of  the 
said  farm,  after  deducting  the  sum  so  paid  by  the  said  Samuel 
Williamson  to  the  said  William  Williamson  the  younger,  de- 
ccased,  in  his  lifetime,  for  his  share  of  the  moneys  arising  from 
the  first  sale. 


JANUARY  TERM,  1846.  553 

Williamson  v.  Adm'rs  of  Johnson. 

Subpoena  is  prayed,  to  be  directed  to  the  said  Asher  William- 
son. 

Oa  the  12th  July,  1828,  the  following  order  was  entered: 
"  U{K)ii  opening  the  matter  to  the  court  this  day  by  Nathaniel 
Saxton,  solicitor  and  of  counsel  with  the  complainant,  it  ap- 
pearing that  process  of  subpoena  to  appear  and  answer  had  been 
duly  issued  and  served  on  the  defendant  in  this  case,  by  the 
sheriff  of  the  county  of  Hunterdon  ;  and  it  being  alleged  that 
a  copy  of  the  amended  bill  in  this  case  had  been  duly  served  on 
Richard  Stockton,  Esq.,  the  late  solicitor  of  the  said  defend- 
ant;  and  that  since  the  decease  of  the  said  Richard  Stockton, 
Esq.,  and  previous  to  the  last  term  of  this  court,  the  said 
defendant  had  been  duly  warned  to  appoint  another  solicitor; 
and  it  appearing  that  the  said  defendant  hath  neglected  to  file 
any  plea,  answer  or  demurrer  to  the  said  bill,  it  is  thereupon 
ordered  and  directed  by  the  Chancellor  that  the  complainant  do 
produce  documents,  depositions  and  other  evidence  to  substan- 
tiate and  prove  the  allegations  in  his  bill,  to  the  end  that  such 
decree  may  be  made  against  the  said  defendant  as  the  Chancel- 
lor shall  think  equitable  and  just." 

On  the  7th  October,  1829,  Peter  Williamson,  examined  on 
the  part  of  the  complainant,  says — He  is  a  son  of  Samuel  Wil- 
liamson, deceased,  and  is  now  in  his  67th  year;  he  recollects 
William  Williamson,  who  was  his  uncle,  and  the  son  of  William 
Williamson  the  elder;  he  recollects  that  his  father,  as  the  ex-- 
t-cutor  of  William  Williamson  the  elder,  deceased,  made  sale 
of  a  farm  as  the  property  of  said  deceased ;  the  said  sale  took 
place  upwards  of  forty  years  ago;  Cornelius  Williamson,  a 
brother  of  the  deponent,  was  the  purchaser  of  the  said  farm  ; 
the  deed  was  not  made  and  executed  for  the  premises  until 
some  time  after  the  sale  was  made;  witness  lived  at  home  with 
his  father  when  the  sale  was  made,  and  thinks  he  did  also 
when  the  deed  was  made,  or  prepared,  to  Cornelius  Williamson, 
which  was  some  time  after  the  sale  ;  witness  went  to  a  convey- 
ancer, on  the  part  of  his  lather,  to  get  the  deed  drawn  lor  the 
premises,  to  Cornelius  Williamson;  my  uncle,  William  Wil- 
liamson, lived  at  that  time  in  Virginia;  he  was  twice  in  the 
county  of  Hunterdon,  at  my  father's;  once  before  and  once  af- 
ter the  sale  was  made  to  Cornelius  Williamson;  when  he  was 

VOL.  i.  2  * 


554    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

there  before  the  sale,  witness  understood  that  his  uncle  wanted 
money  from  witness'  father  as  executor  of  William  Williamson, 
deceased,  and  he  further  understood  that  his  father  paid  him 
some  and  took  his  note  for  it,  but  does  not  recollect  being  pres- 
ent at  the  payment  of  the  money  or  the  giving  of  the  note; 
the  second  time  uncle  William  came  to  Jersey,  which  was  af- 
ter the  sale,  he  remained  here  a  considerable  time,  and  came 
for  his  share  of  the  money  arising  from  the  sale  of  the  farm  ; 
witness  knows  the  fact,  because  he  was  present  at  the  transac- 
tions between  his  father  and  uncle  on  this  business;  witness 
knows  that  his  father,  as  executor  as  aforesaid,  paid  his  uncle 
William  what  he  supposed  to  be  in  full  of  his  share,  and  his 
uncle  gave  a  final  receipt  in  full ;  witness  saw  the  money  paid  ; 
I  drew  the  receipt  and  acquittance  myself;  the  money  was 
paid  and  the  discharge  given  at  the  house  of  John  Hull,  who 
was  the  husband  of  my  aunt  Margaret,  who  was  a  daughter 
and  one  of  the  legatees  of  the  said  William  Williamson  the 
elder,  deceased  ;  the  receipt  or  acquittance  was  signed  by  un- 
cle William,  sealed,  and  was  witnessed  by  deponent  and  one 
Uriah  Bonum ;  witness  cannot  recollect  the  precise  amount  of 
money  that  was  paid,  but  understood  that  the  note  which  his 
uncle  William  had  before  given  to  his  father,  was  deducted 
from  the  amount  of  his  share,  and  the  balance  paid  to  him  in 
money. 

At  the  time  uncle  William  was  paid  his  share,  witness  lived 
on  the  premises  before  mentioned  ;  on  the  morning  of  the  same 
day  that  uncle  was  paid,  my  father,  as  executor  as  aforesaid,  at 
my  house  on  the  premises,  paid  my  aunt  Micha,  another  of  the 
legatees,  her  specih'c  legacy,  and  took  her  receipt;  witness  drew 
the  receipt  for  aunt  Micha,  and  saw  it  executed,  and  was  also  a 
witness  to  it;  thinks  that  Uriah  Bouuni  was  a  witness  to  it  also  ; 
he  was  there. 

From  my  house,  on  the  same  day,  deponent,  his  father  and 
uncle  William  and  Uriah  Eonurn  went  to  the  house  of  John 
Hull,  and  there  my  father,  as  executor  as  aforesaid,  paid  the 
said  John  Hull  and  his  wife  their  specific  legacy,  and  took  their 
receipt  and  acquittance  under  seal;  witness  drew  the  acquit- 
tance from  John  Hull  and  wife  himself,  and  saw  it  executed, 
and  signed  his  name,  together  with  Uriuh  Bonum,  as  witness 


JANUARY  TERM,  1816.  555 

Williamson  v.  Adrn'rs  of  Johnson. 

to  it.  The  paper  now  shown  to  witness,  and  marked  Exhibit 
B  on  the  part  of  the  complainant,  (pro  ut  the  samp,)  witness 
says  is  the  original  receipt  or  acquittance  executed  by  Hull  and 
his  wife,  and  witnessed  by  Bomirn  and  deponent  at  that  time; 
witness  is  satisfied  that  this  receipt  or  acquittance  was  executed 
at  the  very  day  it  bears  date,  and  recollects  making  a  correction 
in  the  last  line  but  one  of  it,  in  the  date,  from  the  first  to  the 
second  day  of  April,  on  the  suggestion  of  his  father  that  he 
had  made  a  mistake  in  the  day  of  the  month. 

At  the  same  time  and  place,  my  father,  as  executor  as  afore- 
said, paid  my  uncle  William  his  share,  and  my  uncle  William 
executed  a  receipt  or  acquittance,  under  his  hand  and  seal, 
which  was  witnessed  by  deponent  and  Uriah  Bo  mini  ;  cannot 
say  which  was  paid  first,  uncle  William  or  Hull  and  his  wife; 
the  receipt  from  ray  uncle  William  to  my  father  as  executor, 
was  drawn  by  me,  and  was  in  the  same  form  as  the  one  from 
Hull  and  his  wife,  except  that  it  was  for  a  share  instead  of  a 
specific  legacy,  and  of  the  same  date  and  executed  the  same 
day  ;  Uriah  Bon  urn,  the  other  subscribing  witness  to  those  re- 
ceipts, has  been  dead  some  years;  witness  recollects  having 
Been  the  receipt  or  acquittance  from  his  uncle  William  to  his 
father  in  the  possession  of  his  father  since  that  time. 

Deponent  has  seen  a  man  called  Abraham  Williamson,  from 
the  western  country,  who  has  been  in  New  Jersey  since  the 
commencement  of  the  cause;  the  said  Abraham  Williamson 
has  been  at  different  times  at  the  house  of  this  deponent,  while 
he  was  in  this  state,  and  represented  himself  as  the  sou  of  the 
said  William  Williamson,  deponent's  uncle;  witness  thinks 
the  said  Abraham  is  the  son  of  his  uncle  William,  from  family 
resemblance,  and  also  from  the  said  Abraham  reminding  him 
of  some  circumstances  that  took  place  at  the  house  of  his  uncle 
William  a  good  many  years  ago,  when  deponent  was  there, 
and  when  the  said  Abraham  was  a  little  boy,  and  which  the 
deponent  recollected  when  reminded  of  them;  in  conversation 
with  the  said  Abraham  respecting  the  payment  made  by  depo- 
nent's father,  as  executor  as  aforesaid,  to  uncle  William,  the 
said  Abraham's  father,  and  its  having  been  recovered  agaia 
from  Benjamin  Johnson,  his  father's  security,  by  Asher  Wil- 
liamson, and  Benjamin  Johnson's  claiming  it  back  in  this  suit. 


556         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

the  said  Abraham  Williamson  said  that  Asher  Williamson  waa 
willing  to  pay  it  back  to  the  children  of  Samuel  Williamson,  de- 
ponent's father,  and  that  deponent  was  a  fool  if  he  did  not  go 
and  get  it,  but  that  Asher  did  not  want  to  pay  it  to  Benjamin 
Johnson;  deponent's  brother,  William  Williamson,  lives  now 
and  has  lived  for  several  years,  in  the  State  of  Kentucky. 

At  the  time  of  the  payment  made  by  my  father,  as  executor 
as  aforesaid,  to  uncle  William,  deponent  knew  the  amount  of 
the  payment  when  it  was  made,  but  cannot  now  recollect 
the  amount;  but  witness  is  satisfied  that  the  payment  made  to 
uncle  William  was  the  full  amount  of  his  share  of  the  proceeds 
arising  from  the  first  sale  of  the  said  farm ;  deponent  never 
drew  or  witnessed  but  one  receipt  or  acquittance,  which  he  has 
before  mentioned,  from  his  uncle  William  to  his  father  as  ex- 
ecutor as  aforesaid,  for  the  share  of  his  said  uncle  William  ;  all 
the  transactions  of  which  deponent  has  spoken,  bctweejj  his 
father  as  executor  as  aforesaid,  and  his  uncle  William,  took 
place  long  before  the  death  of  deponent's  uncle  Cornelius  Wil- 
liamson, and  before  the  bill  filed  in  chancery  by  the  heirs  of 
the  said  Cornelius  against  my  father,  for  the  purpose  of  setting 
aside  the  first  sale  of  the  said  farm. 

The  papers  and  vouchers  referred  to  in  the  foregoing  de- 
position of  Peter  Williamson,  were  produced  at  the  time  of 
his  examination,  and  made  exhibits  on  the  part  of  the  com- 
plainant. 

May  7th,  1832.  Peter  Williamson,  being  again  examined, 
deposed  as  follows:  He  recollects  having  a  conversation  with 
Asher  Williamson,  at  Pennington,  in  the  county  of  Hunterdon, 
»ome  years  ago,  on  the  subject  of  a  payment  made  by  Samuel 
Williamson,  deponent's  father,  as  executor  of  William  Wil- 
liamson, deceased,  to  William  Williamson,  one  of  the  sons  and 
legatees  of  the  said  deceased,  for  his  share  of  the  moneys  arising 
from  the  first  sale  of  the  real  estate  of  the  said  William 
Williamson,  deceased,  and  also  on  the  subject  of  a  receipt  given 
by  the  said  William  Williamson  to  the  said  Samuel  Wil- 
liamson as  executor  for  the  said  share ;  that  conversation  took 
place  at  Pennington,  in  Hunterdon  county,  many  years  ago; 
the  particular  year  deponent  does  not  recollect,  but  it  was  during 
the  pendency  of  a  suit  iu  the  Court  of  Chancery  of  this  state 


JANUARY  TERM,  184G.  557 

Williamson  v.  Adm'ra  of  Johnson. 

between  Asher  Williamson  and  others,  complainants,  and  Sam- 
uel Williamson,  executor  as  aforesaid,  defendant ;  they  were 
taking  some  examinations  in  that  suit,  at  the  time  of  this  con- 
versation, before  James  Linn,  esquire,  a  master  in  chancery; 
iti  that  conversation,  I  told  Asher  Williamson  that  such  a  pay- 
ment had  been  made,  and  a  receipt  given,  to  which  deponent 
and  Uriah  Bonum  were  witnesses,  and  that  if  the  receipt  was 
ever  found  it  would  so  appear ;  deponent's  father  was  not  pres- 
ent at  this  time;  deponent  attended  the  examination  on  behalf 
of  his  father. 

Some  years  after  this  time,  and  during  the  lifetime  of  depo- 
nent's father,  the  particular  day  and  year  the  deponent  cannot 
now  designate,  the  deponent  met  Asher  Williamson  at  the  tav- 
ern of  Joseph  Kughler,  in  Amwell,  Hunterdon  county,  for  the 
purpose  of  making  a  settlement  of  the  account  of  Samuel  Wil- 
liamson, as  executor  of  William  Williamson,  deceased;  on  that 
occasion,  the  receipt  of  which  deponent  has  last  spoken,  and 
which  is  mentioned  in  his  former  deposition,  was  produced  ;  de- 
ponent thinks  it  was  produced  by  William  Maxwell,  esquire  ; 
deponent  saw  it,  and  had  it  in  his  hands  and  examined  it; 
deponent  believes  Asher  Williamson  saw  it  also ;  he  was  there, 
and  deponent  conversed  with  him  respecting  the  receipt,  and 
recollects  telling  Asher  that  he,  deponent,  hoped  there  would 
now  be  no  more  dispute  respecting  the  receipt ;  deponent's 
father  was  unwell  and  was  not  present  that  day  ;  deponent  at- 
tended on  the  part  of  his  father. 

Afterwards,  and  after  the  death  of  deponent's  father,  and 
also  after  the  farm  of  Benjamin  Johnson  had  been  sold  at  the 
suit  of  William  Pennington,  late  Governor  of  the  State  of  New 
Jersey,  to  Cornelius  Williamson,  deponent  recollects  Benjaraia 
Johnson's  coming  to  his  house  and  inquiring  of  him  respecting 
a  payment  made  by  Samuel  Williamson,  as  executor  of  Wil- 
liam Williamson,  deceased,  to»  the  said  William  Williamson 
the  younger,  for  his  legacy  or  share  of  the  moneys  arising  from 
the  first  sale  of  the  real  estate  of  the  said  testator,  made  by  the 
said  Samuel  Williamson,  and  the  receipt  or  acquittance  therefor; 
deponent  then  informed  said  Johnson  that  there  had  been  such 
a  payment  made,  and  that  there  had  positively  been  such  a  re- 
ceipt given,  and  if  it  was  ever  found,  it  would  so  appear;  de- 


558          COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

ponent  had  at  that  time  a  number  of  papers  of  his  father's  in 
his  possession,  and  he  and  Johnson  searched  them  all  over,  but 
could  find  no  receipt. 

January  llth,  1831,  Charles  Bartles,  esquire,  sworn  on 
the  part  of  the  complainant,  saith  that  he  is  acquainted  with 
the  parties  in  the  above  cause ;  has  been  in  the  office  of  Mr. 
Saxton  since  the  year  1822;  recollects  that  after  the  first  sale 
of  the  property  of  complainant  by  virtue  of  an  execution,  at  the 
suit  of  William  S.  Pennington,  governor,  &c.,  against  the  com- 
plainant, as  survivor  of  Samuel  Williamson,  deceased,  com- 
plainant came  to  Mr.  Saxton's  office ;  he  complained  that  there 
was  a  mistake  in  the  amount  of  the  judgment  for  which  that 
execution  had  been  issued;  that  the  judgment  had  been  taken 
for  more  money  than  was  really  due  upon  the  bond  to  the  gov- 
ernor, and  wished  Mr.  Saxton  to  try  and  set  aside  the  sale  ; 
the  complainant  at  the  time  stated  that  some  moneys  had  been 
paid  by  Samuel  Williamson,  as  an  executor  of  William  Wil- 
liamson, senior,  deceased,  that  ought  to  have  been  deducted 
from  the  amount  recovered  by  that  judgment. 

Deponent  recollects  that  there  was  a  difficulty  about  ascer- 
taining the  amount  that  Samuel  Williamson  had  paid  to  said 
William;  he  complained  having  no  receipt  to  show  it;  that 
Mr.  Saxton  directed  him  (complainant)  to  go  to  several  places, 
and  amongst  them  to  one  Terhune's,  to  see  if  he  could  not  find 
such  a  receipt,  and  also  to  examine  for  it  among  the  papers  of 
George  C.  Maxwell,  deceased  ;  Mr.  Saxton  observed  at  the 
time  that  said  Maxwell  had  done  Samuel  Williamson's  busi- 
ness, and  that  the  receipt  might  be  among  his  papers ;  depo- 
nent recollects  hearing  that  a  considerable  deal  of  search  was 
made  for  such  receipt,  and  that  after  some  length  of  time  it  was 
said  to  have  been  found  ;  after  it  was  found  Mr.  Saxton  filed 
the  bill  in  this  cause;  deponent  recollects  distinctly  to  have 
seen  the  receipt  in  Mr.  Saxton'*  possession,  among  the  papers 
in  the  cause,  frequently,  from  the  time  it  was  found  until  it  was 
lost  again,  which  was  about  the  year  1827;  some  time  after 
the  filing  of  .said  bill,  a  person  calling  himself  Abraham  Wil- 
liamson, and  representing  hirncelf  to  be  the  son  and  adminis- 
trator of  William  Williamson  the  younger,  deceased,  and  to  be 
a  citizen  of  the  State  of  Kentucky,  came  to  New  Jersey,  and 


JANUARY  TERM,  1846.  559 

Williamson  v.  Adm're  of  Johnson. 

claimed  the  amount  of  the  moneys  recovered  of  Benjamin  John- 
son by  the  said  Asher  Williamson,  and  then  in  hi*,  Asher's, 
hands;  in  conversation  with  said  Abraham  Williamson,  I  told 
him,  at  several  different  times,  that  he,  complainant,  had  filed 
a  bill  in  chancery  for  the  recovery  of  a  part  of  the  money  col- 
lected by  him,  Asher,  on  the  above-stated  execution  against 
complainant;  and  that  complainant  said  that  that  judgment 
had  been  taken  for  the  whole  amount  of  William  Williamson, 
junior's,  share  of  William  Williamson,  senior's,  estate,  and  that 
Samuel  Williamson,  the  executor  of  William  Williamson,  sen- 
ior, had  paid,  in  his  lifetime,  to  William  Williamson,  junior, 
the  amount  of  his  share  of  the  moneys  arising  from  the  first  sale 
of  William  Williamson,  senior's,  estate;  and  that  he,  Wil- 
liam Williamson,  junior,  had  given  Samuel  Williamson  a 
receipt  for  it,  which  had  not  been  allowed  in  making  up  that 
judgment ;  deponent,  at  Abraham  Williamson's  request,  pro- 
duced the  receipt  and  showed  it  to  him;  he  admitted  the  sig- 
nature to  it  to  be  the  handwriting  of  his  father,  and  several 
times  said  he  would  go  to  Asher  and  get  him  to  allow  the 
amount  of  said  receipt,  and  pay  it  back  to  complainant;  at 
one  time  deponent  recollects  he  (Abraham  Williamson)  came 
to  him  and  got  him  to  make  out  a  statement  of  the  amount  of 
s:iid  receipt,  and  said  he  would  go  to  complainant  and  pay  him 
back  ;  this  was  in  1827 ;  he  said  then  that  the  whole  of  the 
moneys  collected  by  Asher  Williamson  upon  said  execution 
jigainst  complainant  would  be  coming  to  him ;  some  time 
shortly  after  this,  he,  Abraham  Williamson,  came  to  deponent 
again,  saying  he  had  lost  the  statement  above  mentioned,  and 
wanted  deponent  to  make  him  another ;  deponent  got  the  pa- 
pers in  the  cause,  took  out  the  receipt,  and  made  another  state- 
ment for  him  ;  this  was  done  in  Mr.  Sax  ton's  office,  he,  Abra- 
ham Williamson,  sitting  by  all  the  time;  a  short  time  after 
this,  I  understood  that  the  parties  were  to  have  a  meeting  at  Mr. 
Saxton's  office,  to  try  and  settle  the  matter,  upon  a  certain  day 
fixed  by  them;  they  met  accordingly  ;  Mr.  Sax  ton  being  absent, 
they  wished  me  to  get  the  receipt  and  ascertain  the  amount 
due  on  it;  I  got  the  papers,  and,  upon  examining  them,  the  re- 
ceipt was  gone;  I  told  them  I  could  not  find  it ;  he,  Abraham 
Williamson,  then  said  he  was  willing  to  pay  the  amount  of  the 


560    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

receipt  to  Johnson,  complainant,  but  that  the  receipt  must  first 
be  produced;  deponent  then  mentioned  to  him  that  he,  Abra- 
ham Williamson,  had  a  statement  of  the  amount  of  the  receipt, 
and  that  he  could  as  well  settle  the  matter  by  that  as  by  the 
receipt  itself;  his  only  reply  was,  "  produce  the  receipt;"  he 
said  he  would  not  settle  unless  the  receipt  was  produced  ;  in 
speaking  of  a  settlement  with  complainant,  at  different  times 
since,  I  have  heard  him  say,  let  them  produce  the  receipt,  and 
he  would  pay  it ;  at  other  times,  "  they  can't  produce  the  re- 
ceipt;" from  the  whole  conduct  of  said  Abraham  Williamson, 
at  the  time  they  met  at  Mr.  Saxton's  office  to  settle,  and  after- 
wards, he,  deponent,  has  been  induced  to  believe,  and  does  be- 
lieve, that  he,  Abraham  Williamson,  had  stolen  the  receipt  at 
the  time  deponent  made  the  last  statement  of  the  amount  of  it 
for  him  ;  deponent  has  made  search  for  the  receipt  since,  and 
has  not  been  able  to  find  it;  thinks  the  receipt  was  given  for 
about  £130;  deponent  says  the  application  of  the  said  Abra- 
ham Williamson  for  statements  of  the  amount  of  said  receipt 
were  made  by  him  in  the  absence  of  Mr.  Saxton  from  his  office. 
January  llth,  1831,  William  H.  Johnson,  sworn  on  the 
part  of  the  complainant,  saith  he  is  the  son  of  complainant; 
he  recollects  that,  at  the  time  of  the  first  sale  of  his  father's  prop- 
erty, by  virtue  of  the  execution  in  favor  of  William  S.  Pen- 
nington,  governor,  &c.,  his  father  was  much  surprised  at  the 
amount  stated  to  be  due  upon  the  execution  ;  he  thought  it  was 
too  high,  and  that,  after  the  second  sale,  he  (father)  went  to  oi>e 
Abraham  R.  Sutphen  to  get  him  to  come  with  him  to  Saxton's 
to  try  and  recover  back  a  part  of  the  money  that  had  been  col- 
lected at  that  sale;  recollects  that  his  father  went  to  different 
places,  at  different  times  after  'this,  to  look  for  a  receipt  given 
by  William  Williamson,  junior,  to  Samuel  Williamson,  execu- 
tor of  William  Williamson,  senior,  and  that  he,  deponent,  went 
at  request  of  his  father  to  different  places  and  j>ersons  to  look  for 
it,  and  could  not  find  it ;  that  finally  deponent,  Abraham  Gu- 
lick,  complainant,  and  Abraham  R.  Sutphen,  came  to  Mr.  Sax- 
ton's  office ;  Mr.  Saxton  proposed  to  them  that  they  had  better 
go  to  William  Maxwell,  esquire,  and  search  among  the  papers 
of  G.  C.  Maxwell,  esquire,  for  it;  deponent  and  father  went 
together  to  Mr.  Maxwell's;  he,  William  Maxwell,  looked  for 


JANUARY  TERM,  1846.  561 

Williamson  v.  Adra'rs  of  Johnson. 

the  paper,  but  could  not  find  it;  he  said  he  thought  probably 
that  it  might  be  at  Mr.  Clark's  office,  among  papers  in  his  charge; 
Mr.  A.  Wurts  and  deponent  then  went  to  Mr.  Clark's  office,  who 
was  absent,  and  had  left  his  key  with  Mr.  Wurts,  and,  after 
searching  awhile,  we  found  a  bundle  of  papers  relating  to  Wil- 
liam Williamson's  estate;  we  brought  the  bundle  to  Mr.  Sax- 
ton's  office,  and,  upon  examination,  found  in  it  the  receipt  in 
question — the  same  we  had  been  looking  for;  the  amount  of 
it,  deponent  does  not  recollect,  exactly,  but  he  is  sure  it  was  for 
more  than  £100;  deponent's  father  and  Mr.  A.  R.  Sulpheti 
then  requested  Mr.  Saxton  to  file  a  bill  in  chancery  to  recover 
back  the  amount  of  that  receipt. 

January  13th,  1831,  Abraham  R.  Sutphen,  sworn  on  the 
part  of  the  complainant,  saith  he  is  acquainted  with  the  par- 
ties in  the  cause;  recollects  hearing,  at  the  time  of  it,  of  the 
first  sale  of  complainant's  property,  at  the  suit  of  William  S. 
Pennington,  governor,  upon  execution  ;  conversed  with  com- 
plainant, about  the  time;  recollects  that  he  complained  of  the 
largo  amount  of  the  judgment;  that  he  said  it  was  security 
money,  but  deponent  does  not  remember  the  conversation  dis- 
tinctly; complainant,  however,  has  frequently  expressed  to  depo- 
nent that  lie  was  disappointed  by  that  judgment;  that  it  was 
for  a  much  larger  sum  than  he  had  expected,  and  that  there 
was  some  mistake  in  making  it  up;  that  a  certain  payment 
should  have  been  credited,  in  making  it  up,  that  liad  not  been 
credited,  but  what  payment,  or  for  what  sum,  deponent  does  not 
now  recollect;  deponent  recollects  going,  at  complainant's 
request,  in  company  with  Abraham  Gulick,  to  one  Abraham 
IVrhune's,  in  the  county  of  Somerset,  where  Samuel  Williamson 
died,  to  examine  his  papers,  and  see  if  there  was  not  a  receipt 
or  some  paper  among  them,  that  whould  show  the  amount  of 
moneys  paid  out  by  him  as  executor  of  William  Williamson, 
senior,  deceased  ;  Mr.  Terhnne's  family  showed  us  all  the 
papers  (as  they  said)  of  Samuel  Williamson;  we  examined  them, 
but  found  nothing  relating  to  the  matter  we  were  inquiring  into; 
we  returned  and  informed  complainant;  he  appeared  to  l*e  sur- 
prised at  the  information,  and  seemed  to  think  that  they  had 
destroyed  the  paper;  complainant  was  still  very  anxious  to 
search  for  and  find  the  paper,  and  appeared  to  be  very  certain 


562         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

that  there  had  been  such  a  paper,  and  that  it  must  be  in  exist- 
ence yet,  unless  it  had  been  destroyed  ;  some  time  after,  this 
deponent  was  in  the  office  of  Peter  I.  Clark,  esquire,  and,  seeing 
Mr.  William  Maxwell  there  drop  some  papers  upon  the  floor,  in 
pulling  out  a  pocket-book  from  his  pocket,  he,  deponent,  picked 
up  some  of  them,  and  saw  upon  them  the  name  of  Samuel 
Williamson,  deceased;  he  informed  complainant  of  that  cir- 
cumstance, and  told  him  that  he  rather  thought  the  paper  in 
question,  if  in  existence  yet,  must  be  in  his,  Maxwell's,  office; 
the  bundle  of  papers  that  Mr.  Maxwell  dropped  from  his  pocket, 
was  taken  up  by  persons  present,  and  left  in  the  possession  of 
Peter  I.  Clark,  esquire;  after  this,  deponent,  complainant  and 
his  son,  William  H.  Johnson,  and  Abraham  Gulick  came  to 
Flemington  in  company,  to  see  Mr.  Saxton,  and  make  further 
search  for  the  paper  in  question;  Mr.  Saxton  advised  us  to 
make  further  search  for  the  paper,  and,  upon  deponent's  men- 
tioning, again,  the  circumstance  of  his  seeing  the  papers  dropped 
by  Mr.  Maxwell,  it  was  concluded  to  go  there,  and  to  Mr.  Clark's 
office;  Mr.  Saxton  suggested  that  Mr.  Clark  was  gone  from 
home,  and  that  they  had  better  apply  to  Mr.  Wurts,  with  whom 
Mr.  Clark  had  left  the  key  of  his  office;  William  H.  Johnson 
and  Abraham  Gulick  went  accordingly,  and,  after  some  time, 
returned  with  a  bundle  of  papers  relating  to  Samuel  William- 
son's business,  to  Mr.  Saxton's  office;  the  bundle  was  exam- 
ined by  Mr.  Saxton,  and  the  paper  in  question  found  in  it,  and 
read  in  deponent's  presence,  purporting  to  be  a  receipt  from 
William  Williamson  to  Samuel  Williamson,  executor  of  William 
Williamson,  deceased,  for  moneys  paid  by  him;  the  amount, 
about  £130;  don't  recollect,  exactly ;  deponent  recollects  that, 
thereupon,  Mr.  Saxton  advised  the  filing  of  the  bill  in  chancery, 
by  deponent  and  complainant,  in  order  to  recover  back  the 
amount  of  that  receipt;  deponent  recollects  conversing  with 
Asher  Williamson  about  Jhe  matter,  after  the  bill  was  filed  by 
Mr.  Saxton;  he,  Asher,  told  deponent,  at  the  time,  that  he  was 
satisfied,  and  really  believed  that  the  amount  of  that  receipt 
ought  to  be  repaid  to  complainant,  but  that  he  could  not  do  it; 
he,  Awher,  at  the  time,  made  an  estimate  of  the  amount  of  it, 
and,  deponent  thinks,  made  it  over  $1000 — he  thinks  about 
$1100;  he,  Asher,  said  he  was  willing  to  pay  complainant  the 


JANUARY  TERM,  1846.  5G3 

"Williamson  v.  Adm'rs  of  Johnson. 

amount  of  the  receipt,  but  he  did  not  want  the  lot  to  be  sold  which 
he  had  bought  at  the  sale  of  Samuel  Williamson's  property. 

On  the  19th  day  of  January,  1832,  it  being  alleged  that  the 
complainant  had  departed  this  life  since  the  commencement  of 
this  suit,  intestate,  and  that  administration,  &c.,  had  been  grunt- 
ed to  John  T.  Neely  and  William  H.  Johnson,  upon  whom  the 
interest  of  the  said  decedent  in  the  matters  in  question  in  this 
case  hath  devolved,  it  was  thereupon  ordered  by  Chancellor 
Vroom  that  this  suit  be  revived  at  the  suit  of  the  administrators 
as  complainants  against  the  said  defendant. 

May  12th,  .1832,  Nathaniel  Saxton,  sworn  on  the  part  of  the 
plaintiff,  being  shown  the  paper  marked  Exhibit  A,  in  this  case, 
deposeth  and  saith  that  he  was  present  and  saw  Peter  Wil- 
liamson, the  releasor,  sign  and  deliver  the  same,  and  this  depon- 
ent subscribed  his  name  as  a  witness  thereto;  that  it  was  execu- 
ted on  the  day  it  bears  date,  and  previous  to  the  examination  of 
the  said  Peter  Williamson  as  a  witness  in  this  case;  the  depon- 
ent further  saith  that  about  the  mouth  of  September,  1822,  shortly 
after  the  first  sale  of  Benjamin  Johnson's  property,  on  the  exe- 
cution at  the  suit  of  William  S.  Pennington,  late  governor,  &e., 
against  Benjamin  Johnson,  survivor  of  Samuel  Williamson, 
deceased,  the  said  Benjamin  Johnson  applied  to  ihe  deponent  to 
know  if  he  could  not  be  relieved  against  that  sale,  which  he 
alleged  had  been  made  at  a  great  sacrifice;  lie,  at  the  same 
time,  expressed  great  surprise  at  the  amount  demanded  on  the 
execution  being  so  large — upwards  of  $2200;  he  stated  that 
the  judgment  and  execution  were  for  moneys  claimed  by  Asher 
Williamson,  as  administrator  of  William  Williamson,  deceased, 
for  said  William  Williamson's  share  of  the  moneys  arising  from 
the  sale  made  by  Samuel  Wi.Miamson,  executor  of  William  Wil- 
liamson the  elder,  of  a  farm  of  the  testator's,  under  the  direc- 
tion of  the  Court  of  Chancery,  and  for  which  he  (Johnson)  hail 
become  security  for  the  said  Samuel  Williamson,  but  he  did  not 
know  the  amount  that  was  due;  that  he  had  understood  that 
Samuel  Williamson  had  made  a  payment  to  William  William- 
sou,  in  his'  lifetime,  on  the  amount,  but  that  before  this  action 
•was  brought  Samuel  Williamson  had  removed  to  the  county  of 
(Somerset  and  died  there,  and  left  no  executor,  and  no  per.sou 
liad  administered,  as  he  knew  of;  and  he  knew  not  where  to 


564         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

find  any  papers  or  vouchers  to  prove  the  payment  or  show  the 
amount  really  due;  that  he  had  also  heard  that  about  the 
time  of  the  commencement  of  the  suit  against  him,  Asher  Wil- 
liamson had  said  that  there  was  only  about  $1100  or  $1200 
due  from  Samuel  Williamson,  as  executor  of  William  William- 
son, deceased,  to  him,  Asher,  as  administrator  of  William  Wil- 
liamson the  younger,  deceased,  on  his  share  of  the  estate;  from 
which  he  expected  that  Asher  knew  the  amount  actually  due, 
and  intended  to  claim  no  more;  and  in  consequence  of  these 
circumstances  he  did  not  appear  to  make  any  defence  in  the  ac- 
tion ;  that  deponent  inquired  into  the  circumstances  of  the 
pheriff's  sale  of  Johnson's  property,  which,  in  consequence  of  an 
irregularity  in  advertising,  was  abandoned,  and  a  second  sale 
made  in  May,  1823,  which  satisfied  the  judgment;  Johnson 
then  wished  deponent  to  take  some  measures  to  recover  back 
from  Samuel  Williamson's  estate,  if  any  could  be  found,  tho 
moneys  he  had  been  compelled  to  pay  as  his  security,  or  to  re- 
lieve him  against  this  judgment,  *nd  recover  back  from  Asher 
Williamson  the  amount  paid  over  and  above  what  was  actually 
'due;  deponent  advised  him  to  takeout  letters  of  administra- 
tion of  the  estate  of  Samuel  Williamson,  and  also  to  go  to  one 
Terhune,  in  Somerset  county,  where  it  was  said  Samuel  Wil- 
liamson had  died,  and  search  for  some  receipt  or  voucher  to  show 
the  payment  made  by  Samuel  Williamson  to  William  William- 
son; that  about  10th  June,  1823,  Benjamin  Johnson,  Abraham 
R.  Sutphen,  Abraham  Gulick  and^William  H.  Johnson  came 
to  deponent's  office  to  consult  further  on  the  subject,  and  inform- 
ed him  that  they  had  searched  for,  but  had  not  been  able  to  find 
any  receipt  from  William  Williamson;  deponent  then  advised 
them  to  go  to  William  Maxwell's,  and  search  among  the  papers 
of  George  C.  Maxwell,  Esq.,  who  had  done  business  for  Sam- 
uel Williamson,  in  his  lifetime;  one  of  the  company  went  to 
Mr.  Maxwell's,'  but  returned  without  finding  anything;  it  was 
then  proposed  by  some  one,  deponent  don't  recollect  who,  to 
.search  at  the  office  of  Peter  I.  Clark,  Esq.,  and  one  of  the 
company,  deponent  thinks  it  was  William  H.  Johnson,  went, 
and  after  a  short  time  returned  with  a  bundle  of  papers  of  Sam- 
uel Williamson's,  relating  to  the  estate  of  William  Williamson, 
deceased  ;  upon  opening  this  bundle  and  examining  the  papers 


JANUARY  TERM,  1846.  565 

Williamson  v.  Adm'rs  of  Johnson. 

we  found  among  them  the  receipt  or  acquittance  under  seal, 
from  William  Williamson  to  Sa/nuel  Williamson,  executor  of 
William  Williamson,  deceased,  bearing  date  the  2d  day  of 
April,  1792,  for  £131  10s.,  in  full  for  his  share  of  the  legacy 
under  the  will  of  the  said  William  Williamson,  deceased  ;  this 
receipt  was  signed  "  William  Williamson,"  and  attested  by  two 
subscribing  witnesses,  one  of  whom  deponent  recollects  was 
Peter  Williamson,  with  whose  handwriting  deponent  was  ac- 
quainted, and  whose  signature  he  recognized  ;  the  body  of  the 
receipt  appeared  to  be  in  the  same  handwriting  as  the  receipt 
of  John  Hull  and  Margaret,  his  wife,  marked  Exhibit  B  in  this 
case ;  it  bore  the  same  date,  and  deponent  thinks  was  attested 
by  the  same  witnesses;  upon  finding  this  receipt,  deponent  ad- 
vised the  filing  of  a  bill  in  chancery,  which,  after  procuring 
other  documents  and  information,  he  prepared  ;  at  the  time  of 
preparing  the  bill  he  had  this  receipt  of  William  Williamson 
before  him,  and  intended  to  describe  it,  and  believes  he  did  de- 
scribe it  truly  in  the  bill ;  this  bill  was  filed  on  or  about  the 
6th  March,  1824,  in  the  names  of  Abraham  R.  Sutphen,  admin- 
istrator of  Samuel  Williamson,  deceased,  and  Benjamin  John- 
son, complainants,  against  Asher  Williamson  and  others,  defend- 
ants, to  which  a  plea  and  demurrer  was  filed  by  Mr.  Richard 
Stockton,  solicitor  for  Asher  Williamson  ;  after  argument  of  the 
demurrer,  deponent  had  several  conversations  with  Asher  Wil- 
liamson on  the  subject  of  the  suit;  in  those  conversations  Asher 
objected,  strenuously,  against  that  part  of  the  bill  which  sought 
a  review  of  the  former  decree,  and  to  set  aside  the  sale  of  a  lot 
of  laud  sold  as  the  property  of  Samuel  Williamson,  and  bought 
by  him,  but  made  no  objection  to  the  relief  sought  against  the 
judgment  obtained  by  him  against  Benjamin  Johnson ;  as  to 
that,  he  said  he  knew  that  the  receipt  (alluding  to  the  said  re- 
ceipt of  Wrilliam  Williamson  to  Samuel  Williamson,  executor, 
&c.,)  was  right ;  that  Johnson  ought  to  have  the  money  back  ; 
that  if  the  bill  had  been  filed  for  that  only,  he  would  have  made 
no  objection  to  it;  that  he  was  willing  to  pay  that  money  back 
to  Johnson  if  he  would  be  justified  in  doing  so ;  that  deponent 
informed  Asher  that  he  would  amend  the  bill  so  as  to  confine 
the  object  of  it  to  the  recovering  back  cf  the  money  overpaid 
by  Johnson,  and  did  amend  the  bill  in  the  shape  in  which  it 


566         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

now  appears;  that  deponent  informed  Asher  that  he  had  amend- 
ed the  bill  in  that  way,  and  suggested  that  Mr.  Stockton,  his 
solicitor,  could  put  iti  an  answer  admitting  the  facts  as  they 
really  were,  and  upon  that  the  cause  could  be  heard  and  a  pro- 
per decree  made ;  that  Asher  assured  this  deponent  that  he 
would  write  to  Mr.  Stockton  and  authorize  him  to  proceed  in 
such  a  way  that  Johnson  might  get  back  the  money  overpaid, 
if  it  could  be  done,  so  that  he,  Asher,  would  be  justified  in  pay- 
ing it;  that  it  was  right  that  Johnson  should  have  it,  and  he 
would  as  lieve  pay  it  to  him  as  anybody  if  he  was  safe  in  so 
doing;  that  deponent  mentioned  these  conversations  to  Mr. 
Stockton,  but  a  long  time  elapsed  without  Asher's  calling  upon 
him  ;  that  Mr.  Stockton  at  length  wrote  to  Asher,  and  this  de- 
ponent delivered  the  letter,  on  the  receipt  of  vuhich  Asher  prom- 
ised that  he  would  go  and  see  Mr.  Stockton  on  the  subject,  but 
deponent  never  heard  that  he  did  ;  after  Mr.  Stockton's  death, 
about  25th  March,  1828,  deponent  gave  Asher  notice  to  appoint 
another  solicitor,  but  no  answer  having  been  put  in,  on  or  about 
the  12th  July,  1828,  an  order  to  produce  proofs  was  obtained, 
after  which  Asher  still  proposed  putting  in  such  an  answer  that 
Johnson  might  get  his  money  ;  deponent  further  saith  that, 
some  time  after  the  commencement  of  the  suit,  a  person  calling 
himself  Abraham  Williamson,  who  claimed  to  be  the  son  and 
administrator  of  the  said  William  Williamson  the  younger,  came 
to  this  country  and  called  on  deponent  for  information  respect- 
ing the  estate  of  William  Williamson,  deceased  ;  deponent  in- 
formed him  what  he  knew  about  it,  and  that  there  was  money 
in  Asher  Williamson's  hands  belonging  to  the  estate  of  William 
Williamson,  deceased,  which  he  had  recovered  of  Benjamin 
Johnson,  but  that  there  was  a  mistake — that  Asher  had  recover- 
ed more  than  was  due,  and  the  present  suit  was  depending  to 
recover  it  back  ;  he  asked  deponent  to  let  him  see  the  receipt 
of  William  Williamson,  his  father,  as  he  said  ;  deponent  show- 
ed it  to  him,  and  read  it  to  him  ;  he  said  it  was  right,  whatever 
his  father  had  received  ought  to  be  paid  back  if  it  had  not  been 
allowed  ;  he  called  on  deponent  frequently,  and  conversed  on 
the  subject,  and  finally  proposed  that  he  would  settle  with  John- 
son, and  pay  him  back  the  money  himself,  and  then  proceed 
against  Asher  for  the  whole  amount  he  had  received ;  he  pro- 


JANUARY   TERM,  1846.  5G7 

Williamson  v.  Adm'rs  of  Johnson. 

posed  compromising  it,  and  paying  something  less  than  the  full 
amount  due  Johnson,  and  wished  deponent  to  settle  it  with  him, 
which  deponent  declined  doing,  and  proposed  that  he  and  John- 
son should  meet  at  deponent's  office  and  settle  it,  which  he 
agreed  to,  and  a  day  was  appointed  ;  and  he  requested  depo- 
nent to  make  a  calculation,  which  deponent  promised  to  do,  hut 
did  not  make  the  calculation  or  show  him  the  receipt  at  that 
time  ;  after  he  was  gone  deponent  made  a  calculation  ;  he  be- 
lieves the  paper  Exhibit  F  to  be  the  calculation  he  made;  at 
the  time  of  making  the  calculation,  he  had  the  receipt  of  Wil- 
liam Williamson  the  younger  before  him,  and  believes  the  date 
and  amount  of  the  receipt  to  be  truly  stated  in  that  calculation  ; 
after  making  it,  he  put  up  the  receipt  among  other  receipts  in  a 
bundle  of  papers  in  the  case,  and  put  them  in  his  paper  case, 
and  gave  Johnson  notice  of  the  time  of  meeting ;  deponent 
went  from  home,  he  thinks,  to  attend  court  at* Trenton,  and  did 
not  return  on  the  day  of  the  proposed  meeting  until  in  the  after- 
noon ;  he  found  Benjamin  Johnson  and  Abraham  R.  Sutphen 
at  his  office,  and  was  informed  that  Abraham  Williamson  had 
been  there,  but  that  Mr.  Bartles  could  not  find  the  receipt,  and 
Williamson  had  refused  to  do  anything  ;  deponent  then  searched, 
but  it  was  not  in  the  bundle,  and  he  has  never  been  able  to 
find  it  since;  deponent  is  entirely  ignorant  of  what  has  become 
of  it,  but  is  satisfied  that  it  must  have  been  surreptitiously  taken 
out  of  his  office  in  his.  absence ;  that  it  is  lost  and  cannot  now 
be  found. 

On  the  8th  of  April,  1833,  on  a  statement  of  the  facts  as  is 
set  forth  and  alleged  in  an  order  of  this  court  made  by  Chancel- 
lor Vroom  on  the  19th  January,  1832,  it  was,  on  the  8th  of 
April,  1833,  ordered  and  directed  by  Chancellor  Seely,  that  the 
said  order  of  the  19th  January  be  confirmed  as  fully  as  if  the 
same  was  made  at  this  date,  and  that  this  suit  be  and  do  stand 
revived  and  continued  by  and  in  the  names  of  the  said  John 
T.  Neely  and  William  H.  Johnson,  administrators,  &c.,  of  the 
said  Benjamin  Johnson,  as  complainants,  against  the  said  de- 
fendant, pursuant  to  the  statute  in  such  case  made  and  pro- 
vided. 

On  the  20th  July,  1833,  an  interlocutory  decree  was  made  by 
Chancellor  Seely,  referring  it  to  a  master  to  take  an  account,  &c. 


568    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adrn'rs  of  Johnson. 

On  the  15th  July,  1834,  the  defendant  filed  his  affidavit  as 
follows: 

Asher  Williamson,  the  defendant  in  this  cause,  being  duly 
sworn,  'saith  that  on  the  6th  March,  1824,  Abraham  R.  Sut- 
phen,  administrator  of  Samuel  Williamson,  and  Benjamin  John- 
son, exhibited  their  bill  of  review  against  this  deponent,  and 
William  Williamson  and  Cornelius  Williamson,  defendants, 
(stating  the  proceedings  on  the  bill  of  review;)  that  afterwards, 
to  wit,  on  the  15th  day  of  October,  1827,  the  Chancellor 
ordered  that  the  complainants  have  leave  to  amend  the  bill  of 
complaint  in  this  cause  by  striking  out  the  names  of  Abraham 
R.  Sutphen  as  complainant,  and  William  Williamson  and  Cor- 
nelius Williamson  as  defendants,  and  also  so  much  and  such 
parts  of  the  said  bill  as  seek  a  review  of  the  decree  between 
William  Williamson  and  others,  complainants,  and  Samuel  Wil- 
liamson, defendant,- in  the  said  bill  mentioned  and  set  forth,  and 
all  other  irrelevant  matter  in  the  said  bill  contained,  so  as  to 
confine  the  object  of  the  said  bill  to  the  relief  of  Benjamin  John- 
son against  a  judgment  in  the  bill  mentioned  to  have  been  ob- 
tained against  him  in  the  Supreme  Court  by  this  deponent,  upon 
the  said  complainants'  paying  the  defendants'  solicitor  the  costs 
of  th%  plea,  demurrer  and  argument,  and  amending  the  copy 
of  the  defendants'  bill  gratis ;  that  in  the  said  suit  on  the  said 
bill  of  review,  this  deponent  and  the  said  William  Williamson 
and  Cornelius  Williamson  had  employed  Richard  Stockton,  es- 
quire, their  solicitor  and  counsel  ;  that  Richard  Stockton  died 
sometime  in  the  month  of  March,  1828,  as  this  deponent  hath 
been  informed  ;  that  this  deponent  hath  no  recollection  of  ever 
seeing  his  solicitor  after  the  opinion  of  the  court  was  delivered  ; 
that  when  the  opinion  was  delivered,  sustaining  the  plea  and 
demurrer,  Mr.  Stockton  told  him  to  go  home  and  rest  easy,  that 
he  would  not  be  further  troubled  with  that  suit,  and  that  it  was 
at  an  end  and  that  he  was  clear  of  it;  that  he  never  knew  of 
any  order  to  amend  until  on  inspecting  the  files  of  this  court 
this  day  he  discovered  it  ;  that  no  amended  copy  of  the  com- 
plainants' bill  has  ever  been  served  on  him  ;  that  no  snbpoona 
in  the  above  suit  has  ever  been  served  on  him  ;  that  some  time 
after  the  death  of  Mr.  Stockton,  a  notice  was  served  on  him, 
warning  him  to  appoint  a  solicitor  in  his  place ;  but  as  the  ori- 


JANUARY  TERM,  1846.  569 

Williamson  v.  Adra'raof  Johnson. 

ginal  suit  was  at  an  end,  as  he  conceived,  and  lie  had  never 
any  knowledge  of  any  new  suit  by  striking  out  the  names  of 
one  plaintiff  and  two  defendants,  and  a  considerable  portion  of 
the  original  bill,  he  was  ignorant  whether  he  could  be  consid- 
ered his  solicitor  in  the  new  suit ;  nevertheless  he  applied  to  Gar- 
ret D.  Wall  and  Alexander  Wurts  to  do  what  was  necessary 
for  him  ;  that  since  that  time  he  has  supposed  the  suit  at  an 
end,  never  having  heard  any  more  of  it,  more  especially  as 
Benjamin  Johnson,  the  complainant,  hath  since  died;  that 
no  order  reviving  the  suit  has  ever  been  served  on  him  ;  that 
about  three  weeks  ago  he  was  informed  by  Mr.  Wurts  that  a 
decree  had  passed  against  him  iu  this  case,  and  that  it  was  re- 
ferred to  a  master  to  take  an  account;  that  he  immediately 
called  on  him,  brought  to  his  recollection  the  fact  of  his  having 
given  him  a  fee  in  the  case,  and  that  he  believes  that  from  some 
misconception  between  him  and  Mr.  Wall  in  respect  to  who  was 
to  act  as  the  solicitor,  neither  of  tlu-.n  entered  an  appearance  for 
him.  in  this  suit;  that  on  examining  the  proceedings  in  this 
cause  it  appears  that  the  decree  was  signed  on  the  12th  July, 
1828,  but  not  filed  until  the  29th  January,  1829  ;  that  the 
complainant  produced  documents,  &c.,  in  which  it  is  alleged 
that  a  subpoena  in  this  case  was  served  on  this  deponent,  which 
is  not  true;  it  is  also  alleged  that  a  copy  of  the  amended  bill 
in  this  case  has  been  served  on  Mr.  Stockton,  but  it  is  not  al- 
leged that  the  costs  were  either  tendered  or  paid  to  him  ;  that-, 
iu  the  term  of  January,  1832,  it  appears  that  the  suit  was  or- 
dered to  be  revived  in  the  names  of  William  H.  Johnson  and 
John  T.  Neely,  administrators  of  Benjamin  Johnson,  and  that 
on  the  8th  April,  1833,  the  said  order  was  confirmed  ;  and  this 
deponent  further  saith  that  neither  of  the  said  orders  was  served 
on  him;  that  in  the  term  of  July,  1833,  a  decree  was  made 
against  thi.-  defendant,  in  his  absence  and  without  notice  ;  that 
he  hath  never  bad  notice  of  taking  any  depositions,  and  that  lie 
believed  that  the  said  suit  was  ended  ;  and  this  deponent  is  ad- 
vised that  the  said  proceedings  are  irregular;  and  this  deponent 
further  saith  that  he  is  advised  by  his  counsel  that  he  hath  a 
good  defence  to  make  in  this  case  ;  that  he  is  an  administrator 
acting  as  trustee  for  others,  and  ought  to  make  defence;  that 
Se  is  wholly  ignorant  of  the  receipt  stated  in  said  bill,  of  his 
VOL.  I.  '  2  N 


570    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adra'rs  of  Johnson. 

personal  knowledge,  and  that  he  is  ignorant  of  the  handwri- 
ting of  William  Williamson,  his  intestate,  and  never  saw  said 
receipt  or  acknowledged  or  admitted  it  to  be  genuine  or  correct, 
and  has  no  reason  to  believe  that  it  is;  that  he  never  heard 
that  any  such  receipt  was  pretended  to  have  been  given  or  any 
payment  to  have  been  made,  (except  as  the  same  may  be  stated 
in  the  answer  of  Samuel  Williamson,  which  he  did  not  credit,) 
until  after  he  had  obtained  judgment,  in  the  name  of  William 
S.  Pennington,  against  the  said  Benjamin  Johnson,  and  after 
the  money  was  raised  by  execution  ;  that  he  never  believed  or 
admitted  that  the  said  money  was  paid,  or  receipt  given,  or  in 
existence  or  lost,  as  stated  in  the  said  bill,  and  that  according 
to  the  best  of  his  knowledge  and  belief,  the  said  money  men- 
tioned in  the  said  receipt  was  never  paid  to  the  said  William 
Williamson,  his  intestate;  that  he  cannot  on  inquiry  ascertain 
that  he  was  in  this  state  at  or  about  the  time  it  is  stated  to  have 
been  given  ;  that  he  verily  believes  that  it  is  his  duty  as  a 
trustee  to  make  defence  in  this  suit,  and  it  was  always  his  in- 
tention to  do  so,  and  has  been  prevented  by  his  error  in  thinking 
that  the  suit  was  at  an  end  when  the  plea  and  demurrer  filed 
by  Mr.  Stockton  was  sustained,  and  by  his  confidence  that  if 
anything  was  necessary  to  be  done  afterwards  it  would  be  done 
by  Mr.  Wall  or  Mr.  Wurts,  who  were  employed  by  him  after  he 
was  warned  to  appoint  a  solicitor  in  the  place  of  Mr.  Stockton ; 
and  that  he  is  about  to  apply  to  set  aside  said  decrees  for 
irregularity,  and  if  he  fails  in  that,  to  be  allowed  an  op- 
portunity for  defence  ;  that  the  said  application  is  not  made 
for  delay,  but  bona  fide,  to  enable  him  to  discharge  his  duty, 
and  to  have  a  decree  founded  upon  the  justice  and  merits  of 
the  case. 

On  the  18th  July,  1834,  it  was  ordered,  on  reading  the  said 
affidavit,  that  complainants  show  cause  on  the  first  day  of  the 
next  term  why  the  interlocutory  decree  made  in  the  term  of  July 
last  should  not  be  set  aside  for  irregularity,  and  if  it  should 
he  held  to  be  regular,  then  that  the  said  complainants  show 
cause,  at  the  said  time,  why  the  said  decree  should  not  be  open- 
ed and  the  defendant  be  permitted  to  file  an  answer,  upon  such 
terms  as  shall  seem  to  the  court  equitable  and  just;  nnd  in  the 
meantime  that  the  complainants  do  abstain  from  any  proceed- 


JANUARY    TERM,   1846.  571 

Williamson  v.  Adm'rs  of  Johnson. 

ings  under  the  said  interlocutory  decree,  or  from  taking  any 
account  under  the  same. 

On  the  18th  July,  1838,  it  was  ordered  that  the  defendant 
bring  on  the  hearing  of  his  rule  to  show  cause  at  the  next  term, 
or  that  it  be  discharged. 

On  the  22d  January,  1839,  on  reading  an  affidavit  of  Na- 
thaniel Saxton,  taken  21st  January,  1839,  an  order  was  made 
discharging  the  rule  to  show  cause,  if  cause  be  not  shown  during 
that  term,  and  substituting  James  N.  Reading  as  master. 

On  the  27th  August,  1839,  James  N.  Reading,  esquire,  one 
of  the  masters,  made  a  report,  whereby  he  found  to  be  due  com- 
plainants from  defendant,  $1988.50J. 

On  the  16th  October,  1839,  the  report  was  confirmed,  and 
final  decree  by  Chancellor  William  Pennington,  and  execution 
issued,  returnable  to  April  Terra,  1840,  for  the  sum  reported  to 
be  due,  with  interest  from  27th  August,  1839,  and  costs,  $175, 
and  interest. 

On  the  16th  July,  1840,  it  was  ordered  that  all  further  pro- 
ceedings on  the  execution  be  stayed  until  the  further  order  of  this 
court;  and  that,  in  the  meantime,  the  execution  and  levy  do 
stand  as  a  security  for  the  complainants  until  the  further  order 
of  this  court. 

On  the  15th  July,  1841,  it  was  ordered  that  the  decree  and 
proceedings  thereupon  had  in  this  case  do  stand  as  a  security  for 
any  amount  that  the  complainants  may  be  entitled  to  recover  in 
this  case  j  that  the  defendant  have  leave  to  file  an  answer  within 
forty  days  from  the  date  of  this  order,  and  to  examine  witnesses, 
and  to  cross-examine  any  already  examined,  so  that  such  exami- 
nation be  closed  on  or  before  the  20th  day  of  September  next, 
so  that  the  cause  may  be  heard  at  the  next  term  of  this  court ; 
and  that  the  complainants  have  leave  to  read  the  depositions 
heretofore  taken  ;  and  that  the  defendant  serve  a  copy  of  his 
answer  gratis  on  the  solicitor  of  complainants  as  soon  as  filed, 
upon  condition  that  defendant  pay  the  costs  taxed  since  the  decree 
of  July  20th,  1833,  and  including  said  decree. 

On  the  18th  July,  1841,  defendant  filed  his  answer.  He  de- 
nies that,  to  his  knowledge  or  belief,  the  said  Samuel  William- 
son, on  the  2d  day  of  April,  1792,  or  at  any  other  time,  paid 
to  William  Williamson  the  younger,  the  sum  of  £131  10s.,  or 


572         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

any  other  sum,  for  his  share  of  the  proceeds  of  the  first  sale ;  or 
that  the  said  William  made,  executed,  and  delivered  to  the  said 
Samuel  Williamson,  an  acquittance  or  discharge  in  full  of  his 
said  share,  bearing  date  on  that  or  any  other  day. 

He  says  that  he  has  heard,  and  believes  it  to  be  true,  that  the 
said  Samuel  Williamson,  when  he  procured  the  said  Benjamin 
Johnson  to  become  his  surety,  received  the  said  sum  of  $4734.22 
in  cash,  and  that  he  deposited  in  the  hands  of  the  said  Benja- 
min Johnson,  in  order  to  secure  him  from  any  loss,  the  sum  of 
$2000,  or  some  other  large  sum  of  money,  which  sum  remained 
in  his  hands  at  the  "time  of  the  commencement  of  the  action 
in  the  name  of  the  said  William  S.  Pennington  ;  and  this  de- 
fendant further  saith,  that  the  complainant,  Benjamin  Johnson, 
as  soon  as  he  found  that  this  defendant  had  commenced,  or  was 
about  to  commence  an  action  against  him,  in  the  name  of  Wil- 
liam S.  Pennington,  Chancellor  as  aforesaid,  by  a  deed  purport- 
ing to  bear  date  on  the  5th  day  of  June,  1821,  and  to  be  made 
between  the  said  Benjamin  Johnson  and  his  wife,  of  the  first 
jmrt,  and  William  H.  Johnson  and  Clarissa  Johnson,  the  son 
and  daughter  of  the  said  Benjamin  Johnson,  of  the  second  part, 
for  the  pretended  consideration  of  $10,000,  did  convey  to  the 
said  William  H.  Johnson  and  Clarissa  Johnson  the  three  sev- 
eral tracts  in  the  said  bill  mentioned,  with  full  covenants;  which 
said  deed  was  acknowledged  on  the  29th  day  of  September, 
1821,  and  recorded  on  the  1st  day  of  October  in  the  same  year. 
And  the  defendant  charges  that  the  said  deed  was  made  with- 
out a  valuable  consideration,  and  was  contrived  of  covin  and 
fraud,  to  defeat  the  recovery  of  any  money  on  the  said  bond  on 
which  the  said  Benjamin  Johnson  was  surety.  That  the  said 
William  H.  Johnson  and  Clarissa  Johnson  made  formal  procla- 
mation of  their  pretended  title,  and  a  parade  of  warning  all 
persons  from  purchasing;  and  it  was  not  until  after  this  defend- 
ant had  purchased  the  said  property,  (at  the  first  sheriff's  sale 
thereof,  which  was  abandoned  far  irregularity,)  and  thereby 
evinced  his  determination  to  rely  upon  his  legal  rights,  that  the 
said  Benjamin  Johnson,  William  H.  Johnson,  and  Clarissa  John- 
son saw  fit  to  abandon  the  pretended  deed  so  as  aforesaid  made; 
aud  the  said  William  H.  Johnson  and  Clarissa  Johnson  became 
the  purchasers  of  the  same  property  at  sheriff's  sale,  and  after- 


JANUARY  TERM,  1846.  573 

Williamson  v.  Adm'rs  of  Johnson. 

wards  hit  upon  the  expedient  of  setting  up  the  pretended  receipt 
set  forth  in  the  bill  of  complaint. 

He  denies  that  he  ever  knew  or  believed  that  the  said  Samuel 
Williamson  had  ever  paid  to  the  said  William  Williamson  the 
younger  any  part  of  his  share,  or  that  he  ever  was  so  told  by 
any  person,  or  ever  admitted  that  the  said  Samuel  Williamson 
had  ever  paid  any  part  of  the  said  share  to  the  said  William 
Williamson  the  younger;  and  he  expressly  denies  that  the  pay- 
ment of  the  said  sum  of  money  pretended  in  the  bill  of  com- 
plaint to  have  been  made  by  the  said  Samuel  Williamson  to  the 
said  William,  and  the  existence  of  the  said  receipt  therefor,  was 
well  known  to  this  defendant,  or  that  he  had  repeatedly,  or  at 
any  time,  admitted  that  a  payment  had  been  made,  or  that,  after 
the  commencement  of  the  suit  against  the  said  Benjamin  John- 
son, and  before  the  execution  of  the  said  writ  of  inquiry,  or  at 
any  other  time,  he  had  admitted  that  there  was  only  $1000  or 
$1200  due  to  the  said  William,  which  was  all  he  expected  to 
recover  of  the  said  Benjamin  Johnson,  or  any  other  sura  less 
than  the  whole  amount  of  the  share  of  the  said  William,  ascer- 
tained in  the  before- mentioned  suit  in  chancery,  prosecuted  by 
this  defendant  and  his  brothers  and  sisters,  against  the  said 
Samuel  Williamson.  And  he  further  denies  that  he  ever  saw 
any  such  receipt,  or  that  any  such  receipt  was  ever  shown  to 
him  by  any  person  whatever. 

He  admits  that,  in  the  answer  of  the  said  Samuel  Williamson 
to  the  bill  filed  by  this  defendant  and  his  brothers  and  sisters, 
he,  the  said  Samuel  Williamson,  alleged  that  he  had  paid  ami 
satisfied  the  said  William  Williamson  and  John  Williamson,  two 
of  the  sons  and  devisees  of  the  said  William  Williamson,  de- 
ceased, their  shares;  and,  in  the  same  answer,  he  also  alleged 
that  .he  had  settled  with  the  father  of  this  defendant  for  his 
share;  and,  inasmuch  as  he  altogether  failed  to  prove  that  he 
had  settled  with  the  father  of  this  defendant,  as  he  had  alleged 
in  his  answer,  and  offered  no  proof  that  he  had  paid  and  satis- 
fied the  said  William  Williamson,  in  support  of  the  allegation 
in  his  answer,  or  showed,  or  pretended  to  have  any  receipt  or 
discharge  therefor,  this  defendant  did  not,  at  any  time,  believe 
the  allegation,  in  that  respect,  contained  in  the  answer  of  the 
baid  Samuel  Williamson,  the  more  especially  as  this  defendant 


674         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adui'rs  of  Johnson. 

had  never  heard  or  believed  that  the  said  William  Williamson 
ever  came  to  New  Jersey  after  the  sale  of  the  said  farm  of  the 
said  William  Williamson,  or  that  the  said  Samuel  Williamson 
paid  him,  on  the  2d  day  of  April,  1792,  £131  10s.,  in  full  of 
his  share  of  the  moneys  arising  from  the  first  sale  of  the  farm 
of  the  said  testator,  or  any  other  sum  of  money,  except  what  is 
stated  in  the  answer  of  the  said  Samuel  Williamson,  which  this 
defendant  never  believed  to  be  true. 

He  denies  that,  after  the  decease  of  the  said  Samuel  William- 
son, or  at  any  time  before,  he  went  to  the  house  of  the  said 
Abraham  Terhune,  where  he  died,  and  examined  his  papers 
remaining  there,  or  that  he  ever  made  any  search  anywhere, 
among  the  papers  of  the  said  Samuel  Williamson,  or  any  other 
person,  for  a  receipt  or  acquittance  from  the  said  William  Wil- 
liamson to  the  said  Samuel  Williamson,  or  for  any  other  paper 
belonging  to  the  said  Samuel  Williamson,  but,  on  the  con- 
trary, this  deponent  never  believed  that  any  such  payment  had 
been  made  by  the  said  Samuel  Williamson  to  the  said  William 
Williamson,  nor  does  he  now  believe  it,  nor  did  he  at  any 
time  believe,  nor  does  he  now  believe,  that  any  such  receipt  or 
acquittance  was  ever  given  by  the  said  William  Williamson  to 
the  said  Samuel  Williamson,  as  is  pretended  in  the  said  bill  of 
complaint,  nor  was  any  such  receipt  or  acquittance  ever  shown 
to  him,  or  offered  to  be  shown  to  him,  by  any  person,  or  seen  by 
him,  at  any  time;  and  he  always  believed,  and  still  believes, 
that  no  proof,  entitled  to  credence,  could  be  produced  of  such 
payment,  and  that  no  such  acquittance  or  discharge  ever  existed, 
or  could  or  would  be  produced. 

He  admits  that  he  did  cause  to  be  exhibited,  before  the  said 
inquest,  a  claim  for  the  whole  amount  of  the  share  of  the  said 
William  Williamson,  deceased,  of  the  moneys  arising  from  the 
second  sale  and  net  proceeds  of  the  said  farm,  upon  the  footing 
of  the  before-mentioned  decree  of  October,  1813,  with  the  inter- 
est thereon,  without  allowing  any  credit  for  any  payment,  and 
that  the  whole  amount  of  the  said  claim  was  assessed  and  found 
for  the  plaintiff,  by  the  said  inquest,  as  is  set  forth  in  the  said 
bill;  but  he  denies  tUat  he  knew,  at  any  time,  or  suspected  or 
believed,  or  does  now,  that  such  payment  had  been  made  and 
acquittance  given,  as  is  pretended  in  the  said  bill,  or  that  the 


JANUARY  TERM,  1846.  575 

Williamson  v.  Adm'ra  of  Johnson. 

same  ought  to  be  credited;  or  that  the  sura  so  claimed  and 
found  was  not  due  and  owing  by  the  said  Samuel  Williamson, 
as  executor  as  aforesaid,  to  this  defendant,  as  administrator 
of  the  said  William  Williamson,  deceased  ;  and  he  also  denies 
that  the  complainant  was  deceived  and  surprised  by  the  conduct 
of  thia  defendant,  or  had  the  slightest  reason  to  impute  any  such 
surprise  or  deceit  to  the  conduct  of  this  defendant,  which  was 
honest,  frank  and  in  strict  conformity  to  the  principles  of  law, 
justice  and  propriety,  in  enforcing  an  honest  claim  openly  and 
by  due  course  of  law;  and  the  attempt  now  made  by  the  com- 
plainant to  impute  fraud  and  deceit  to  this  defendant  is  as  un- 
founded and  unsupported,  even  upon  the  facts  alleged,  as  it  is 
untrue  and  unjust  upon  the  true  state  of  the  facts;  and  this  de- 
fendant humbly  insists  that  the  complainant  has  been  guilty, 
even  upou  his  own  showing,  of  gross  laches  and  inexcusable 
negligence  ;  neglecting  the  proper  means  of  making  a  defence 
in  the  proper  and  lawful  manner,  relying  upon  the  success  of 
his  fraudulent  attempt  to  put  his  property  beyond  the  reach  of 
his  creditors,  in  the  hands  of  his  own  children  ;  and  it  was  not 
until  he  found  himself  defeated  in  that  effort,  that  he  seems  to 
have  resorted  to  this  expedient  to  accomplish  the  same  end  by 
other  means;  and  this  defendant  insists  that  it  is  apparent  from 
the  statement  of  the  complainant,  that  he  voluntarily  slept  over 
the  defence  now  set  up  until  he  was  awakened  by  discovering 
that  this  defendant  had  purchased  his  property  at  the  first  sher- 
iff's sale,  notwithstanding  his  fraudulent  conveyance  to  his  chil- 
dren, and  all  his  efforts  to  place  his  property  beyond  the  reach 
of  a  judgment  would  fail. 

And  this  defendant  further  saith  that  the  complainant,  be- 
fore this  defendant  caused  an  action  to  be  brought  against  him 
upon  the  bond  so  as  aforesaid  given  to  William  S.  Pennington, 
in  the  lifetime  of  the  said  Samuel  Williamson,  well  knew  of  the 
claim  of  this  defendant  as  administrator  of  the  said  William 
Williamson,  and  that  he  would  be  held  liable  for  the  same ;  and 
yet,  by  his  own  showing,  being  informed  of  the  alleged  pay- 
ment by  the  said  Samuel  Williamson  to  William  Williamson, 
he  makes  no  defence,  and  takes  no  measures  to  obtain  evidence 
until  he  found  that  his  effort  to  place  his  property  beyond  the 
reach  of  a  judgment  had  failed;  and  this  defendant  avers  that 


576         COURT  OF  ERROES  AND  APPEALS. 

Williamson  v.  Adm'ra  of  Johnson. 

at  the  time  of  the  entering  the  judgment  in  the  case  of  the  sai<J 
William  S.  Penniugton,  Chancellor,  &c.,  against  the  said  Ben- 
jamin Johnson,  and  the  issuing  of  the  execution  thereupon,  and 
the  payment  and  receipt  of  the  money  thereon,  as  stated  m  the 
bill  of  complaint  and  this  answer,  this  defendant  did  not  know, 
other  than  as  is  hereinbefore  stated  to  have  been  alleged  in  the 
answer  of  the  said  Samuel  Williamson,  to  the  bill  of  complaint 
of  this  defendant  and  others  against  him,  as  is  set  forth  in  the 
bill  of  complaint  of  the  complainant;  and  he  did  not  believe 
that  the  said  Samuel  Williamson  had  ever  paid  any  part  of  the 
moneys  due  to  the  said  William  Williamson  ;  nor  does  he  know 
or  believe,  or  had  he  heard,  to  his  remembrance,  that  the  said 
Samuel  Williamson  had,  or  pretended  to  have,  any  receipt  or 
acquittance  therefor;  and  this  defendant  verily  believed  that  the 
allegation  in  the  answer  aforesaid,  of  the  payment  to  William 
Williamson,  was  equally  untrue  and  unsupported  by  evidence 
as  the  allegation  of  a  similar  payment  to  Cornelius  Williamson, 
the  father  of  this  defendant,  contained  in  the  same  answer;  and 
he  never  took  any  measures,  or  did  any  act,  or  uttered  any 
speech,  which  could  misl-ead  or  deceive  the  complainant  in  rela- 
tion to  the  said  payment  or  receipt  in  any  manner  whatever,  or 
prevent  him  from  making  any  inquiries  or  defence  he  naight  see 
proper ;  or  induce  him  to  suppose  that  he  claimed  less  than  the 
whole  amount  of  the  proceeds  of  the  sale  and  net  rents  of  the 
said  farm,  upon  the  footing  of  the  decree  of  October,  1813,  com- 
ing to  the  share  of  the  said  William  Williamson  ;  and  this  de- 
fendant avers  that  the  said  judgment  set  forth  in  the  bill  of  com- 
plaint, and  referred  to  in  this  answer,  is  still  in  force,  no  ways 
reversed  or  set  aside ;  that  the  matters  in  controversy,  and  the 
real,  substantial  parties  were  the  same,  and  the  whole  merits  of 
the  case  as  stated  in  the  complainant's  bill  might  have  been 
fully  heard,  tried  and  determined  in  the  said  action,  and  that 
the  said  judgment  therein  was  obtained  fairly  and  without  fraud, 
coviu  or  misrepresentation,  or  the  taking  of  any  undue  advan- 
tage ;  and  that  no  evidence  has  come  to  the  knowledge  of  the 
Complainant  since  the  said  commencement  of  the  said  action  in 
which  the  said  judgment  was  obtained,  respecting  any  of  the 
facts  alleged  in  the  said  bill,  which  he  might  not  have  obtained 
and  produced  by  the  use  of  due  and  ordinary  diligence  in  de- 


JANUARY  TERM,  1846.  577 

Williamson  v.  Aclra'rs  of  Johnson. 

fence  to  the  said  action  ;  and  this  defendant  insists  upon  the 
said  judgment,  and  claims  the  same  benefit  thereof  as  if  lie 
had  pleaded  the  same  in  this  cause.  And  this  defendant,  for 
the  reasons  and  under  the  circumstances  aforesaid,  is  advised 
and  insists  that  the  said  complainant  is  not  entitled  to  any  relief 
against  this  defendant  touching  the  matters  complained  of  in 
the  said  hill ;  and  also  insists  upon  the  said  laches  and  negli- 
gence of  the  said  complainant,  and  claims  the  full  benefit  there- 
of, as  if  the  same  had  been  pleaded  also. 

He  denies  that  the  complainant  had  not  access  to  the  papers 
of  the  said  Samuel  Williamson,  or  that  he  could  not  have  found 
the  papers  of  the  said  Samuel  Williamson  in  relation  to  the  said 
claim,  or  any  documents  or  vouchers  to  enable  him  to  contest 
or  to  make  any  defence  against  the  same,  or  to  create  a  personal 
representative  of  the  said  Samuel  Williamson  to  investigate 
the  stale  of  his  affairs,  as  well  before  as  after  the  entering  of 
the  said  judgment  against  the  complainant,  by  the  use  of  com- 
mon and  ordinary  diligence  and  the  appropriate  inquiries  and 
means  for  the  purpose ;  all  the  parties  and  witnesses  residing- 
in  the  neighborhood  of  the  complainant,  and  it  not  being  pre- 
tended that  any  papers  were  concealed  or  suppressed  from  him, 
or  that  any  witnesses  denied  or  withheld  their  knowledge  when 
applied  to  in  relation  to  any  matter  touching  the  same.  And 
this  defendant  being  entirely  ignorant  of  the  means  used  by  the 
complainant  to  obtain  information  and  papers  respecting  the 
pretended  payment  of  Samuel  to  William  Williamson,  other 
than  what  is  stated  in  his  bill  of  complaint,  neither  admits  nor 
denies  what  Is  stated  by  the  complainant  in  his  bill  for  that  pur- 
pose, nor  does  he  know  anything  in  respect  to  the  said  pre- 
tended receipt  from  William  Williamson  to  Samuel  Williamson 
for  £131  10s.,  bearing  date  the  2d  day  of  April,  1792,  nor  has 
he  ever  seen  any  such  receipt,  nor  does  he  believe  that  the  said 
William  Williamson  ever  received  the  said  sum  of  money  or 
any  part  thereof,  or  ever  signed  any  such  receipt  or  acquittance, 
or  ever  was  in  the  State  of  New  Jersey  at  the  time  it  bears  date, 
he,  the  said  William,  having  left  New  Jersey  before  the  revo- 
lutionary war ;  and  he  has  been  informed  and  believes  that  the 
said  William  Williamson  never  could  write  his  name  or  read 
writing.  And  this  defendant  knows  nothing  of  the  loss  or  mis- 


578         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

laying  of  the  said  pretended  receipt,  and,  therefore,  does  not 
admit  any  such  loss  or  mislaying,  and  hopes  that  the  complain- 
ant may  be  compelled  to  make  strict  proof  thereof,  inasmuch  as 
such  pretences  are  easily  made,  and  such  would  be  the  mode 
resorted  to  if  a  pretended  receipt  should  be  set  up. 

He  denies  that,  to  his  knowledge  or  belief,  he  obtained  the 
said  judgment  and  execution  against  the  complainant  for  a 
larger  sum  than  was  actually  due,  by  any  such  fraud,  deceit, 
concealment  or  surprise  as  is  pretended  in  the  said  bill,  or  by 
any  fraud,  deceit,  concealment  or  surprise  whatever;  or  that 
the  complainant  had  not  the  same  means  in  his  power  to  obtain 
the  said  receipt,  if  any  such  existed,  and  to  prove  the  said  pay- 
ment and  ascertain  the  amount  thereof,  as  he  has  since  discov- 
ered, by  the  use  of  the  same  diligence  and  means  as  he  subse- 
quently used.  And  he  insists  that  all  the  allegations  contained 
in  the  said  bill,  in  respect  to  this  defendant  having  heard  of 
such  payment  being  made,  or  seen  the  said  acquittance  and  dis- 
charge, and  well  knowing  of  the  same  being  given,  or  admit- 
ted that  there  was  only  a  balance  of  ten  or  twelve  hundred  dol- 
lars, or  declarations  that  he  intended  to  claim  no  more,  as  is 
pretended  in  the  said  bill,  is  utterly  and  entirely  false. 

He  says  that  after  the  filing  of  the  present  bill,  and  in  March, 
1828,  Richard  Stockton,  his  solicitor  and  counsel,  died,  having 
before  his  death  told  this  defendant,  when  the  decision  was 
made  by  the  Chancellor  on  the  plea  and  demurrer,  to  go  home, 
and  that  he  would  not  be  further  troubled  with  this  matter. 
That  after  the  death  of  the  said  Richard  Stockton,  and  without 
any  previous  notice  to  this  defendant,  to  his  recollection  or  belief, 
on  the  29th  day  of  January,  1829,  and  without  the  payment 
of  any  of  the  costs,  which  was  the  condition  precedent  for  the 
leave  to  amend  ordered  by  the  court,  an  order  was  illegally  and 
upon  false  allegations  obtained  for  the  complainant  to  make 
proof  of  the  allegations,  in  the  usual  form.  And  this  defendant 
avers  that  he  was  never  served  with  any  order,  or  warned  to  ap- 
point a  solicitor  in  the  place  of  his  deceased  solicitor,  Richard 
Stockton,  to  his  recollection  or  belief,  andj  he  supposed  that  suit 
was  ended.  That  on  the  19th  day  of  July,  1832,  an  order  was 
made  suggesting  the  death  of  Benjamin  Johnson,  the  complain- 
ant, and  reviving  the  suit  in  the  name  of  his  administrators,  tne 


JANUARY  TERM,  1846.  579 

Williamson  v.  Adm'rs  of  Johnson. 

present  complainants.  That  this  order  was  never  served  upon 
this  defendant,  and  was  wholly  illegal,  there  being  no  statute 
authorizing  such  a  revival,  and  the  only  mode  of  revival  then 
lawful,  being  by  bill  of  revivor, 

That  on  the  7th  day  of  October,  1829.  the  deposition  of  Peter 
Williamson  was  taken,  without  any  notice  to  this  defendant, 
and,  on  the  7th  day  of  May,  1832,  his  deposition  was  again 
taken,  without  any  notice  to  this  defendant.  That  on  the  llth 
day  of  January,  '1831,  the  depositions  of  Charles  Bartles  and 
William  H.  Johnson  were  taken,  and,  on  the  13th  day  of  the 
same  mouth,  the  deposition  of  Abraham  R.  Sutphen  was  taken, 
without  notice  to  this  defendant,  and,  on  the  12th  day  of  May, 
1832,  the  deposition  of  Nathaniel  Saxton  was  taken;  and  all 
the  said  depositions  were  filed  on  the  16th  day  of  July,  in  the 
same  year.  That  on  the  ]2th  of  February,  1833,  an  act  of  the 
legislature  was  passed,  authorizing  a  revivor  by  rule,  in  the  case 
of  the  death  of  a  sole  complainant,  upon  the  terms  and  in  the 
manner  stated  in  the  said  law.  That  on  the  8th  day  of  April, 
in  the  same  year,  ail  order  was  made  to  confirm  the  previous 
order  to  revive. 

And  this  defendant  insists  that  the  said  order  to  revive,  and 
the  order  to  confirm  the  same,  were  wholly  illegal  and  void,  and 
all  the  depositions  taken  in  the  intermediate  time  were  illegally 
and  unlawfully  taken,  and  the  depositions  ought  not  to  be  heard 
in  this  case.  That  on  the  20th  day  of  July,  1833,  an  interlocu- 
tory order  was  made,  referring  it  to  Alexander  Wurts,  one  of 
the  masters  of  this  court,  to  take  an  account,  and,  on  the  18th 
day  of  July,  1834,  ail  order  was  made  substituting  Andrew 
Miller  as  master,  instead  of  the  said  Alexander  Wurts,  and,  on 
the  same  day,  this  defendant,  having  been  informed,  accidentally, 
of  the  said  proceedings,  and  never  before  having  had  the  slight- 
est idea  but  that  the  said  suitwas  ended,  made  an  affidavit,  and 
applied  to  the  court  and  obtained  an  order  for  the  complain- 
ants to  show  cause  why  the  said  decree  and  all  proceedings 
should  not  be  set  aside  or  opened.  On  the  15th  day  of  October, 
1838,  an  order  was  made  that  this  defendant  should  bring  on 
the  argument  of  the  rule  to  show  cause  at  the  next  term,  or  that 
it  should  be  discharged.  And  on  the  22d  day  of  January,  1839, 
an  affidavit  was  made  of  the  service  of  a  copy  of  the  before- 


580          COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

mentioned  rule,  and  an  order  made  discharging  the  said  rule  to 
show  cause,  on  the  same  day.  On  the  4th  day  of  September, 
in  the  same  year,  a  report  was  made,  and,  on  the  12th  day  of 
October,  in  the  same  year,  a  decree  was  made,  which  was  opened 
in  the  terra  of  July  last,  and  this  defendant  permitted  to 
answer,  as  by  the  said  several  proceedings,  to  which  this  defend- 
ant begs  leave  to  refer,  will  more  fully  and  at  large  appear. 

And  he  insists  that  the  said  proceedings  were  and  are  void — 
in  the  first  place,  because  the  complainant  had  leave  to  amend 
only  on  condition  of  paying  costs,  which  he  never  paid,  or  took 
any  measures  to  pay;  in  the  second  place,  that  he  never  warned 
this  defendant  to  appoint  a  solicitor  in  the  place  of  the  said 
Richard  Stockton,  or  gave  this  defendant  any  notice  of  the  said 
proceedings,  although  he  lived  within  five  miles  of  the  residence 
of  the  solicitor  of  the  complainant;  in  the  third  place,  the  suit 
abated  on  the  death  of  the  complainant,  and  the  order  for 
revivor  was  utterly  void,  and  the  order  subsequently  made  to 
confirm  the  same  was  also  void,  as  not  pursuing  the  act  and  not 
amending  the  complainant's  bill  and  order  on  defendant  to 
answer  the  same,  and  the  order  discharging  the  rule  to  show  cause 
was  irregular,  and  all  the  subsequent  proceedings  ought  to  have 
been  vacated  and  set  aside.  And  he  saith  that  the  money 
which  he  recovered  of  the  said  complainant  belonged  to  him,  as 
administrator  of  the  said  William  Williamson,  who  died  intes- 
tate, in  the  state  of  Kentucky,  leaving  issue — Abraham, William, 
Richard,  John,  Samuel,  Cornelius,  Margaret  Wilson,  Mary 
Smoot,  and  Micha  Bailey,  his  next  of  kin.  That  the  said  Abra- 
ham, in  his  own  behalf,  and  holding  letters  of  attorney  from 
some  of  the  other  heirs  of  William  Williamson  the  younger, 
issued  a  citation  in  the  Orphans'  Court  of  the  county  of  Hun- 
terdon,  returnable  in  the  terra  of  October,  1824,  to  show  cause 
why  his  letters  of  administration  should  not  be  revoked,  and 
obtained  a  decree  to  that  effect,  and  to  the  term  of  February, 
1825,  issued  a  citation  out  of  the  same  court  for  this  defendant 
to  account,  and  the  said  proceedings  are  still  pending,  Nathaniel 
Saxton,  the  solicitor  for  the  complainant,  being  the  attorney  of 
the  said  Abraham  Williamson,  and  thus  harassing  this  defend- 
ant with  a  double  and  conflicting  claim. 

And  he  further  saith,  that  while  the  said  proceedings  were 


JANUARY  TERM,  1846.  581 

Williamson  v.  Adnrre  of  Johnson. 

pending  against  him,  at  the  instance  of  the  said  Abraham  Wil- 
liamson, by  his  attorney,  Nathaniel  Saxton,  and  when  he  sup- 
posed that  the  suit  in  chancery,  instituted  by  the  complainant, 
was  ended,  he  endeavored  to  free  himself  from  the  other  de- 
mand, and  accordingly,  on  the  28th  day  of  September,  1831, 
he  paid  to  the  said  Micha  Bailey  and  Thomas  Bailey,  her  hus- 
band, (which  said  Micha  was  one  of  the  children  of  the  said 
William  Williamson  the  younger,)  her  full  distributive  share  of 
the  said  estate,  and  took  their  receipt  therefor;  and  on  the  30th 
day  of  September,  in  the  same  year,  he  paid  to  Mary  Sinoot, 
another  child  of  the  said  William,  the  full  amount  of  her  dis- 
tributive share,  and  took  her  receipt  therefor;  and  on  the  2d 
day  of  March,  1833,  he  paid  to  Joseph  Williamson,  the  attor- 
ney in  fact  of  the  said  Abraham  Williamson,  William  William- 
son, Richard  Williamson  and  John  Williamson,  and  of  Perry 
Weakley,  administrator  of  Samuel  Williamson,  Cornelius  Wil- 
liamson and  Margaret  Wilson,  the  other  children  of  the  said 
William  Williamson,  and  next  of  kin,  and  took  his  receipt  for 
their  several  distributive  shares. 

And  he  further  saith  that,  at  the  time  he  made  the  said  pay- 
ments of  the  distributive  shares  to  the  said  Thomas  Bailey  and 
Micha,  his  wife,  Mary  Smoot,  Abraham  Williamson,  Richard 
Williamson,  John  Williamson  and  William  Williamson,  and 
Perry  Weakley,  administrator  of  Samuel  Williamson,  Cornelius 
Williamson  and  Margaret  Wilson,  severally,  he  fully  believed 
that  the  suit,  so  as  aforesaid  instituted  against  this  defendant  by 
the  said  complainant,  was  ended,  and  was  wholly  ignorant  that 
it  lay  in  waiting  to  be  sprung  upon  him  as  soon  as  the  contest 
with  the  heirs  and  distributees  of  the  said  William  Williamson, 
was  ended. 

And  he  further  saith  that  the  paid  Thomas  Bailey  and  Micha, 
his  wife,  Mary  Smoot,  Abraham  Williamson,  Richard  William- 
son, William  Williamson  and  John  Williamson,  and  Perry 
Weakley,  administrator  of  the  said  Samuel  Williamson,  Corne- 
lius Williamson  and  Margaret  Wilson,  or  their  legal  repre- 
sentatives, if  any  of  them  be  deceased,  severally,  ought  to  be, 
but  are  not,  made  parties  to  the  said  bill ;  and  he  claims  the 
same  benefit  as  if  he  had  pleaded  such  want  of  parties  in  this 
case. 


582         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

The  order  for  closing  testimony  was  enlarged  from  time  to 
time,  on  application  of  complainants,  until  thirty  days  from 
the  llth  November,  1842. 

Peter  Williamson,  whose  deposition  was  taken  ex  parte  on 
the  part  of  the  complainant,  being  called  by  the  defendant  for 
the  purpose  of  cross-examination,  being  duly  sworn,  saith — I 
shall  be  79  years  old  on  the  24th  of  July  next;  my  uncle  Wil- 
liam removed  from  New  Jersey  before  my  recollection  ;  he 
was  at  my  father's  a  long  while  ago  ;  I  forget  whether  I  was 
married  or  not ;  it  was  after .  my  grandfather's  death  ;  my 
grandfather  died  before  my  recollection  ;  I  don't  know  exactly 
whether  it  was  before  my  father  sold  my  grandfather's  property 
or  not ;  I  was  grown  up  ;  it  was  said  he  came  up  to  get  money 
of  my  father,  as  executor  of  ray  grandfather ;  I  don't  know 
whether  he  got  money  the  first  time  or  not ;  whether  he  got  the 
money  the  first  or  second  time  he  came,  I  cannot  recollect,  but 
I  once  wrote  a  receipt ;  I  don't  know  how  long  it  was  between 
the  first  and  second  time  he  came;  I  think  he  lived  in  Virginia 
when  he  came  the  second  time ;  never  brought  any  of  his  fami- 
ly with  him,  but  came  alone  both  times ;  when  he  came  the 
first  time,  I  lived  in  Amwell,  with  my  father,  and  don't  know 
but  I  did  the  second  time;  I  lived  with  tny  father  one  year 
after  my  marriage;  I  think  I  was  married  in  my  22d  year — my 
first  marriage;  I  then  moved  to  Six  Mile  Run,  near  Brunswick; 
I  lived  there  two  years  ;  then  went  to  my  father's,  and  in  two 
or  three  weeks  moved  on  the  old  homestead  farm;  I  lived  there 
a  considerable  time ;  don't  know  whether  I  lived  there  when  it 
was  sold  by  master  Linn  ;  it  is  thirty-three  or  four  years,  I 
think  thirty-three  years,  since  I  moved  away  from  the  home- 
stead ;  all  this  I  could  tell  exactly  if  at  home  ;  when  my  uncle 
William  came  the  second  time,  I  lived  on  the  old  place — the 
old  homestead  ;  I  remember  this  by  the  fact  that  he  went  with 
me  at  that  time  to  grandmother  De  Hart's  burying ;  my  grand- 
mother's name  was  Micha ;  she  was  buried  at  Six  Mile  Run  ; 
1  think  my  uncle  William  was  in  about  a  month,  but  can't  be 
positive  as  to  the  time;  he  stayed  at  my  father's  the  principal 
part  of  the  time  while  he  was  in  ;  I  should  not  like  to  be  right 
Mire  whether  the  receipt  I  spoke  of  was  given  the  first  or  second 
time,  nor  do  I  remember  the  sum,  nor  whether  I  saw  any  mo- 


JANUARY  TERM,  1846.  583 

Williamson  v.  Adin'ra  of  Johnson. 

ney  paid  ;  the  receipt  was  for  his  legacy ;  I  wrote  the  receipt — 
uncle  William  signed  it;  there  was  some  little  dispute  about 
it  by  my  father ;  I  wrote  a  receipt  first ;  my  father  did  not  like 
it,  and  stated  his  objections ;  it  was  burnt,  and  he  told  me  how 
I  should  write  it;  uncle  William  signed,  or  made  his  mark  ;  he 
sat  by  when  I  read  it;  am  not  sure  whether  he  signed  or  made 
his  mark — think  he  signed  it;  am  not  sure  whether  he  could 
read  writing  or  not,  but  he  looked  at  it  as  if  reading,  a  consid- 
erable time;  John  Hull,  who  married  my  aunt  Margaret,  was 
present  at  the  time;  nobody  but  us  three  and  aunt  Margaret 
and  uncle  John  were  present  at  the  time;  I  don't  now  remem- 
ber of  anybody  else  being  present  at  the  time;  I  read  the 
second  receipt  aloud  in  the  presence  of  uncle  William  and  the 
others;  this  took  place  at  John  Hull's  house;  I  asked  my 
father,  at  his  own  house,  which  is  4£  miles  from  the  homestead, 
why  the  business  could  not  be  done  at  home;  he  said  it  could 
not,  but  must  be  done  at  Hull's;  that  uncle  Bill  would  be  there; 
uncle  Bill  was  not  present  at  this  conversation  between  me  and 
tny  father;  John  Hull  lived  on  a  lot  which  I  believe  belonged 
to  his  wife,  aunt  Margaret,  about  a  half  mile  from  the  home- 
stead ;  the  receipt  was  given  after  the  funeral  of  Micha  De 
Hart;  I  think  the  receipt  was  in  full  of  uncle  William's  share 
of  grandfather's  estate;  there  was  money  handed  about,  but 
I  do  not  now  recollect  the  amount;  don't  know  that  uncle 
William  owed  father  anything,  or  that  father  ever  paid  him 
anything  before  father  took  the  receipt  home;  don't  know 
that  I  evey  saw  it  afterwards ;  there  has  been  great  inquiry 
for  it;  if  I  have  ever  seen  it  since,  I  have  forgotten  it;  I  never 
showed  it  to  Asher  Williamson ;  I  could  not  show  it,  for  I  hadn't 
it;  never,  that  I  know  of,  told  Asher  Williamson  that  such  a 
receipt  had  been  written  by  me  and  signed  by  my  uncle  Wil- 
liam; don't  know  that  I  recollect  the  amount  of  the  receipt; 
there  was  no  other  receipt  given  or  payment  made  at  that  time, 
nor  about  that  time,  that  I  know  of;  if  there  was,  I  should  have 
wrote  it,  but  I  didn't ;  aunt  Micha  Williamson  lived  with  me 
at  the  old  homestead,  at  the  time  of  the  receipt ;  I  expect  she 
had  a  money  legacy  left  to  her  by  her  father ;  was  never  present 
at  any  payment  to  her  by  my  father;  I  recollect  on  one 
occasion  hearing  aunt  Micha  growl  at  her  sou  who  lived  with 


584         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

her,  and  who  had  bought  a  horse  with  money  obtaind  from 
her;  she  said  that  money  would  soon  be  gone,  and  I  supposed 
she  alluded  to  the  legacy  from  her  father;  father  did  not  pay 
any  money,  that  I  remember,  to  aunt  Margaret  or  uncle  Hull, 
the  day  of  the  receipt  from  uncle  William  ;  nor  do  I  recollect  to 
have  seen  any  money  paid  by  my  father  to  either  of  them  for 
her  legacy ;  they  might  have  paid  it  a  hundred  times,  and  I 
not  been  present;  I  never  drew  a  receipt,  that  I  remember,  from 
John  Hull  and  Margaret,  his  wife,  to  my  father,  as  executor  of 
my  grandfather,  for  her  legacy ;  I  think  if  I  had  I  should  re- 
member it,  but  do  not  remember  it;  I  never  witnessed  such  a 
receipt;  I  don't  know  of  any  other  receipt  than  that  from  uncle 
William  on  the  day  that  was  given  ;  at  the  time  uncle  William 
got  the  money,  uncle  John  lived  in  Virginia,  as  was  said  ;  he 
was  in  after  the  second  visit  of  uncle  William  ;  I  remember 
that  perfectly  well,  because  he  borrowed  a  book  of  me  which  he 
promised  to  return,  but  never  did  ;  don't  remember  how  long 
it  was  after  uncle  William  was  in,  that  uncle  John  came;  can't 
recollect  whether  it  was  about  that  time,  or  some  two  or  three 
years  afterwards;  I  was  once  at  uncle  William's  and  uncle 
John's,  in  Virginia;  they  lived  not  far  apart;  I  guess  it  was 
before  he,  uncle  William,  was  in  ;  it  might  have  been  after  the 
first  time;  I  went  there  to  spend  money,  as  my  father  said  ;  it 
was  the  second  year  after  I  was  married  ;  I  went  there  to  see 
the  country  ;  can't  tell  what  part  of  Virginia  it  was  ;  I  under- 
stood uncle  William  moved  away  from  Virginia  afterwards,  but 
whether  he  did  move,  and  where  he  did  move,  I  do  pot  know  ; 
the  graveyard  where  grandmother  Micha  DeHart  was  buried, 
is  a  mile  below  the  present  church,  towards  Brunswick,  between 
the  turnpike  and  the  old  road  ;  I  expect  the  time  of  her  death 
appears  upon  her  gravestone;  don't  recollect  being  at  Joseph 
Kughler's  tavern  in  Amwell,  witli  my  father  and  Asher  Wil- 
liamson, respecting  the  estate  of  my  grandfather ;  don't  know 
that  I  ever  recollect  seeing  William  Maxwell,  esquire,  with  my 
father  and  Asher  Williamson,  at  Kughler's ;  if  I  did,  I  have  for- 
gotten it ;  don't  recollect  anything  about  that  receipt  having 
been  exhibited  to  Asher  Williamson  at  Kughler'.s;  I  think  if  I 
had  ever  been  present  when  that  receipt  was  exhibited,  1  should 
now  remember  it;  it  was  disputed,  one  spell,  whether  there  was 


JANUARY  TERM,  1846.  585 


Williamson  v.  Adm'rs  of  Johnson. 


a  receipt  at  all  or  not ;  Benjamin  Johnson  asked  me  about  it, 
and  I  told  him  I  recollected  it  perfectly  well ;  and  then  Johnson 
and  myself  made  a  search  for  nearly  a  day  among  my  father's 
papers,  but  could  not  find  it;  I  told  Mr.  Johnson  I  was  sure 
there  was  such  a  receipt ;  this  was  some  time  after  my  father's 
death  ;  don't  know  that  I  ever  had  a  conversation  with  Asher 
Williamson,  at  Pennington  or  elsewhere,  about  said  receipt; 
don't  remember  being  examined  as  a  witness  in  the  chancery 
suit  between  my  father  and  the  heirs  of  my  uncle  Cornelius;  I 
don't  remember  being  examined  before  James  Linn;  I  remem- 
ber being  in  Pennington  once,  but  don't  remember  what  took 
place ;  I  am  of  opinion  that  Uriah  Bonum  came  to  uncle  John 
Hull's  while  we  were  settling  that  business;  I  knew  him;  it 
was  said  that  Bonum  lived  in  Kingwood,  not  a  great  ways,  two 
or  three  miles  front  the  old  place;  he  was  considerable  older 
than  me;  he  is  not  living  now  ;  I  know  I  lived  on  the  home- 
stead place  several  years  ;  don't  remember  how  many ;  I  moved 
away  from  it  before  the  war;  can't  tell  whether  I  lived  on  it  till 
it  was  sold  by  master  Linn  or  not;  1  might  have  made  this  all 
out  by  writing  I  have  at  home,  if  I  had  a  little  notice;  I  moved 
from  the  place  to  Flemington,  and  kept  a  tavern  two  years,  be- 
longing to  John  Van  Middlesworth  ;  then  I  bought  a  house  at 
Ricefield,  in  Somerset  county,  about  2£  miles  from  Flagtowu  ; 
1  got  a  license  and  kept  a  tavern  at  that  house  two  years;  I 
went  to  Rietfteld  in  1812;  I  moved  from  Ricefield  to  Amwell,., 
where  John  Hill  now  lives;  T  Jived  there  a  year, and  then  went 
down  to  the  river,  near  John  Phillips'  mill,  below  Lambert- 
ville;  I  stayed  a  year  at  Phillips'  mill,  then  went  to  John 
Knowles',  about  a  mile  from  the  river,  where  I  lived  a  year;  I 
then  went  to  the  place  where  I  now  live,  where  I  have  been 
ever  since;  I  think  it  is  ten  years  next  spring  that  I  have  been 
there,  but  I  am  not  right  sure ;  there  was  no  farm  to  the  tav- 
ern at  Ricefield  ;  I  gave  $1450  for  it;  I  got  part  of  the  money 
from  my  father  to  pay  for  it ;  can't  say  how  much ;  guess  some- 
where about  half  of  it;  all  this  I  could  tell  if  I  was  home; 
never  got  any  money  from  him  since  or  before;  how  ruv  fa- 
ther's property  was  at  his  decease  is  more  than  I  know  ;  but 
think  there  was  more  due  to  me  if  it  had  been  divided  ;  but  we 
never  could  find  his  will ;  he  made  a  will,  I  know ;  he  died  at 
VOL.  I.  2  o 


586         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

Abraham  Terhune's,  near  Princeton,  and  I  always  thought 
they  knew  what  became  of  the  will;  Abraham  Terhune  mar- 
ried my  sister ;  my  father  lived  at  Terhune  s  two  years,  more 
or  less,  till  his  death ;  don't  know  what  property  he  had  when 
he  went  to  Terhune's ;  I  don't  remember  that  I  ever  told  Asher 
Williamson  that  I  was  present  at  any  payment  from  my  father 
to  uncle  William,  or  of  any  such  payment;  if  I  did,  I  have  for- 
gotten it ;  there  are  many  things  asked  me  now  which  I  do  not 
remember. 

And  in  answer  to  questions  put  on  the  part  of  the  complain- 
ants, the  witness  further  saith,  (being  shown  a  paper  marked 
Exhibit  B) — The  signature  Peter  Williamson,  as  a  witness,  on  the 
paper,  is  my  signature;  don't  know  Uriah  Bonum's  hand- 
writing, but  expect  that  signature  is  his  handwriting,  or  it 
would  not  be  there;  the  body  of  the  paper  is  my  handwriting, 
and  so  is  the  name  of  Margaret  Hull ;  she  made  her  mark, 
not  being  able  to  write;  I  don't  know  that  I  have  any  recollec- 
tion of  the  occasion  when  that  paper  was  made;  I  guess  it  was 
not  at  the  time  uncle  William  gave  his  receipt  at  John  Hull's; 
I  remember  that  I  made  a  mistake  in  the  date ;  I  wrote  it  the 
first  day  of  the  month  ;  father  said  it  was  the  second,  not  the 
first,  and  I  immediately  made  the  alteration  ;  the  paper  was  ex- 
ecuted the  very  day  it  bears  date  ;  I  saw  John.  Hull  sign  it,  and 
Margaret  Hull  make  her  mark. 

And  in  answer  to  questions  put  on  the  part  of  the  defendant, 
the  witness  further  saith — The  receipt  marked  Exhibit  B  was 
made  at  John  Hull's  house;  I  think  my  uncle  William  was 
not  present;  it  was  done  some  time  after  he  went  away  the 
last  time;  can't  tell  how  long  it  was  after  uncle  William  went 
away ;  can't  tell  whether  Bon  urn  was  there  by  accident,  or 
whether  he  was  sent  for  at  the  signing  of  Exhibit  B;  I  remem- 
ber well  what  Bonum  said  at  that  time;  aunt  Margaret  was 
growling  at  the  amount;  Bonum  said  to  her,  you  ought  not  to 
growl,  it  was  not  the  fault  of  the  executor;  her  father  had  done 
it;  Bonum,  I  think,  was  present  when  uncle  William  gave  his 
receipt,  but  can't  be  certain. 

Abraham  R.  Stitphen,  a  witness  examined  on  the  13th  of 
January,  1831,  on  the  part  of 'the  complainants,  being  called, 
or.  a  eross-examinatiou  on  the  part  of  the  defendant,  the  said 


JANUARY  TERM,  1846.  587 

Williamson  v.  Adm'rs  of  Johnson. 

defendant  protesting  that  the  said  examination  was  illegal,  ana 
not  waiving  any  objection  thereto,  saith — I  am  about  sixty  years 
of  age;  I  took  out  letters  of  administration  of  the  estate  of 
Samuel  Williamson,  deceased  ;  I  was  not  at  all  related  to  him ; 
was  not  a  creditor,  nor  had  any  concern  or  interest  in  the  es- 
tate ;  it  is  so  many  years  ago,  I  do  not  recollect  at  whose  in- 
stance I  took  out  the  letters;  I  believe  it  was  at  Benjamin  John- 
eon's  request ;  can't  say  who  paid  the  expenses  of  the  admin- 
istration ;  I  have  not  got  the  letters,  and  do  not  know  where 
they  a*e ;  I  was  a  very  distant  relation  of  Benjamin  Johnson's, 
so  far  that  I  am*  not  able  to  say  what  the  relationship  was; 
don't  recollect  anything  of  authorizing  a  bill  to  be  filed  for  me 
as  administrator  of  Samuel  Williamson,  against  Asher  Wil- 
liamson and  others  ;  don't  recollect  ever  feeing  counsel  in  the 
matter;  it  appears  to  me  that  there  was  a  little  estate  of  Sam- 
uel Williamson;  it  was  a  trifle  anyhow,  and  I  don't  recollect 
now  what  it  was;  I  never  knew  the  handwriting  of  William 
Williamson,  the  brother  of  Samuel,  or  of  Peter  Williamson,  the 
son  of  Samuel,  or  Uriah  Bon  urn  ;  never  saw  any  one  of  them 
write;  I  saw  a  receipt  purporting  to  be  given  by  William  Wil- 
liamson to  Samuel  Williamson,  executor  of  William  William- 
son, deceased  ;  I  don't  recollect  the  exact  sum  ;  it  was  in  pounds, 
and  was  over  a  hundred  pounds;  don't  know  whether  it  was 
genuine  or  not;  I  thought  it  was — it  appeared  so;  the  receipt 
was  for  a  hundred  and  thirty-some  pounds;  I  saw  the  receipt 
in  1827  or  1828,  I  think,  but  can't  be  certain  as  to  the  time; 
I  thiuk  something  has  passed  between  Asher  Williamson  and 
me  about  the  receipt,  but  what  it  was  I  cannot  say  ;  don't  re- 
collect that  Asher  Williamson  ever  admitted  to  me  that  the  re- 
ceipt was  genuine,  or  that  he  had  any  knowledge  of  it;  I  recol- 
lect hearing  Asher  Williamson  say  that  if  they  could  find  such 
a  receipt  he  would  be  willing  to  pay  it,  provided  he  could  be 
clear  in  so  doing;  he  said  he  didn't  believe  there  was  such  a 
receipt;  I  cannot  tell  when  or  where  this  conversation  was,  or 
whether  any  person  was  present;  I  knew  Peter  Williamson  by 
sight  for  some  time  ;  I  know  nothing  about  his  character  for 
truth  and  veracity ;  I  have  been  out  of  the  neighborhood  for 
many  years. 

And  being  examined  further  on  the  part  of  the  complainants, 


588         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

eaith — I  recollect  further,  that  in  a  conversation  between  Asher 
Williamson  and  myself,  Mr.  Williamson  said  that  if  there  was 
a  receipt,  Benjamin  Johnson  ought  to  have  the  money  back 
again ;  and  he  certainly  admitted  to  me  that  there  was  such  a 
receipt;  I  can't  remember  whether  the  conversation  now  allu- 
ded to  was  before  or  after  I  filed  the  original  bill  with  Benjamin 
Johnson  against  Asher  Williamson  and  others  ;  it  was  after  we 
went  to  Terhune's  to  look  for  the  receipt. 

[A  copy  of  deed  from  Benjamin  Johnson  to  William  H.  John- 
son and  Clarissa  Johnson  was  produced  and  offered  on  the  part 
of  the  defendant,  and  marked  Exhibit  No.  1.] 

William  H.  Johnson,  a  witness  who  was  examined  on  the 
part  of  the  complainant  on  the  llth  of  January,  1831,  in  the 
lifetime  of  his  father,  and  being  now  cross-examined  on  the  part 
of  the  defendant,  the  defendant  excepting  against  the  legality 
of  his  evidence,  and  not  waiving  any  exception  thereto,  and  the 
witness  desiring  to  be  excused,  inasmuch  as  he  was  a  party  in 
the  cause,  being  duly  sworn  according  to  law,  saith — I  am  one 
of  the  grantees  in  this  deed  (Exhibit  No.  1  being  shown  him); 
the  three  tracts  described  in  Exhibit  No.  1,  are  the  same  three 
mentioned  in  the  sheriff's  levy  in  Exhibit  No.  2  j  that  was  all 
the  land  belonging  to  my  father,  excepting  a  wood-lot  of  about 
nine  acres,  called  the  Field  lot,  which  was  sold  after  his  death 
by  his  administrators  ;  John  T.  Neely  married  Clarissa  Johnson, 
the  sister  of  the  witness  and  the  other  grantee  mentioned  in 
Exhibit  No.  1 ;  Clarissa  and  myself  were  the  only  children  of 
Benjamin  Johnson  ;  my  sister  and  myself  became  the  purcha- 
sers at  the  second  sale  made  by  Edward  Welsted,  sheriff  of 
Hunterdon,  mentioned  in  the  pleadings  in  this  cause  ;  we  paid 
the  purchase  money  to  Mr.  Welsted,  also  mentioned  in  said 
pleadings;  the  money  I  borrowed — some  of  my  uncle,  Law- 
rence Hann,  of  Morris,  and  some  of  my  father-in-law,  Jacob 
Case,  of  Hunterdon  ;  the  case  was  instituted  to  recover  back 
such  amount  of  money  as  should  appear  was  not  due  on  the 
judgment ;  in  respect  to  the  receipt  mentioned  in  my  principal 
examination  in  1831,  I  did  not  know  tbe  handwriting  of  Wil- 
liamscn  or  Uriah  Bonum  ;  I  never  saw  either  of  them  write,  not 
never  knew  either  of  them  ;  could  not  say  as  to  the  hand- 
writing of  the  body  of  the  receipt ;  can't  say  whether  the  uamy 


JANUARY  TERM,  1846.  689 

Williamson  v.  Adm'rs  of  Johnson. 

of  Peter  Williamson  or  Uriah  Bonum  were  subscribed  as  wit 
nesses  thereto,  but  do  recollect  that  the  name  of  William  Wil- 
liamson, as  signer  of  the  receipt,  was  there;  I  never  employed 
counsel  in  the  case  during  my  father's  life,  nor  did  I  ever 
advance  money  to  my  father  to  employ  counsel  with  ;  I  did  not 
authorize  my  father  to  institute  the  suit. 

Question  by  Mr.  Saxton. — Had  you  ever  a  conversation  with 
Asher  Williamson  respecting  this  case,  and  the  payment  by 
Samuel  Williamson  to  his  brother  William? 

[Question  objected  to  by  Mr.  Wall,  insisting  that  it  is  unlaw- 
ful, and  that  the  witness  is  not  competent  to  testify  to  any  new 
matter  in  this  case.} 

Witness. — Ashcr  Williamson  and  Neely  and  myself  had  a 
conversation,  on  the  porch  of  the  county  tavern  at  Flemington ; 
I  and  my  brother-in-law  felt  anxious  to  settle,  and  thought  we 
could  settle;  Mr.  Williamson  said  he  understood  there  was  such 
a  receipt,  and  he  was  willing  to  settle,  if  he  could  satisfy  the 
heirs;  he  never  made  any  objection  to  the  genuineness  of  the 
receipt,  nor  did  I  ever  hear  any  such  objection  before  to-day ; 
this  conversation  was  after  the  death  of  my  father,  but  how 
long  after,  I  cannot  tell ;  my  father  died  in  August,  1831,  I 
think. 

Question  by  Mr.  Saxton. — Did  not  Abraham  Williamson, 
who  professed  to  be  the  son  of  William  Williamson,  tell  you, 
some  time  after  you  saw  the  receipt,  that  it  could  not  be  pro- 
duced? 

[Mr.  Wall  objected  to  the  question,  as  unlawful,  and  that  the 
witness  is  incompetent.] 

Witness. — He  did,  and  defied  us  to  produce  it,  and  said  if  we 
could  produce  it,  it  should  be  paid. 

James  S.  Manners,  called  on  the  part  of  defendant,  being 
duly  sworn,  saith — 

Question  by  Mr.  Wall. — What  is  the  general  reputation  of 
Peter  Williamson,  the  witness  who  has  been  sworn  in  this  case, 
in  the  neighbourhood  where  he  lives,  for  truth  and  veracity? 

[Mr.  Saxton  objects  to  the  question,  insisting  that  it  ought  to 
be,  What  is  his  general  reputation  for  truth  and  veracity,  under 
oath  as  a  witness?] 

Witness. — I  have  never  lived  exactly  in  the  neighborhood  of 


590         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

Mr.  Williamson;  I  believe  Mr.  Williamson  is  allowed  to  talk  a 
little  at  random,  as  some  of  the  rest  of  us  do,  sometimes ;  I  have 
frequently  heard  his  general  reputation  for  truth  and  veracity 
doubted,  but  with  what  propriety,  I  cannot  say;  I  lived,  till  this 
spring,  between  six  and  seven  miles  from  the  old  homestead 
farm  of  William  Williamson,  and  about  nine  miles  from  Flag- 
town,  and  eleven  and  a  half  miles  from  Ricefield,  and  not  more 
than  six  miles  from  where  he,  Peter  Williamson,  has  lived  the 
last  ten  years;  we  lived  in  the  same  township,  during  the  last 
ten  years,  until  the  township  was  divided,  about  three  years  ago  ; 
that  division  threw  me  into  Raritan,  and  left  him  in  old  Am- 
well  township;  since  last  spring,  1  live  within  about  four  miles 
of  him  ;  I  have  known  him  thirty-five,  certainly — perhaps  forty 
years;  this  has  been  his 'reputation,  with  some  people,  during 
the  whole  time  I  have  known  him;  personally,  Mr.  Williamson 
has  always  treated  me  well,  and  there  has  always  been  the 
utmost  kind  feeling  between  us. 

And  being  cross-examined  on  the  part  of  the  complainants. 

Question  by  Mr.  Saxton. — Have  you  ever  heard  a  respectable, 
reputable  man  say  that  Peter  Williamson  was  not  to  be  believed 
under  oath,  as  a  witness? 

Answer. — I  have  heard  a  respectable  man  say  that  there  was 
a  case  in  which  he  tripped,  and  he,  the  person  who  spoke,  knew 
it ;  I  mean  by  tripped,  swore  falsely. 

Question  by  Mr.  Saxton. — Was  that  man  interested  in  that 
case? 

Answer. — No,  not  at  all — no  connection  with  it. 

Question  by  Mr.  Saxton. — Did  you  ever  hear  any  other  man 
gay  that  he  knew  it? 

Answer. — No ;  not  that  they  knew  it,  but  that  they  doubted 
the  truth  of  what  Williamson  had  said  under  oath,  as  a  witness 
in  any  other  case  than  the  one  before  mentioned ;  I  never  heard 
anything  against  his  general  character  for  truth  and  veracity, 
under  oath,  in  relation  to  any  other  case  than  the  one  men- 
tioned ;  that  case  was  on  his  application  for  a  pension  from  the 
United  States,  as  a  revolutionary  character;  Henry  Gulick,  Wil- 
liamson's brother-in-law,  was  the  man  who  said  Williamson 
had  sworn  falsely,  and  he  knew  it;  he  said  they  were  boys 
together,  and  he  knew  Williamson's  statement  was  not  so ;  he 


JANUARY  TERM,  1846.  591 


Williamson  v.  Adm'rs  of  Johnson. 


told  me  at  my  house ;  I  have  heard  a  great  many  who  spoke 
about  it  express  the  same  opinion  ;  I  never  heard  any  one  speak 
about  it  who  did  not  say  he  doubted  the  truth  of  Williamson's 
story  ;  Henry  Gulick  was  the  only  one  I  ever  heard  say  he 
knew  that  Williamson's  statement  was  false;  I  heard  Peter  I. 
Clark  say  (hat  he  doubted  that  Williamson  was  entitled  to  the 
j>ension  ;  Mr.  Clark  received  Williamson's  pension  for  him  at 
Trenlou,  as  he  told  me  on  the  way  up  j  I  do  not  know  that  I 
could  name  any  other  person  who  expressed  the  same  opinion, 
but  whenever  I  have  heard  any  one  talk  about  it,  they  have 
always  expressed  the  same  opinion  ;  I  do  not  know  that  Henry 
Gulick  ever  saw  Williamson's  affidavit  for  a  pension  ;  he  went 
upon  the  presumption  that  Williamson  had  made  affidavit  to 
sufficient  service  to  draw  a  pension,  and  he  said  that  he  knew 
that  he  was  not  out  more  than  two  months. 

George  Holcomb,  a  witness  produced  on  the  ]>art  of  the  de- 
fendant, being  duly  sworn,  saith — If  I  live  to  see  December 
7th,  I  shall  be  seventy-one ;  I  have  been  in  the  mercantile  and 
milling  business  together  ever  since  I  was  a  little  rising  twenty, 
till  within  twenty  years  back  ;  I  lived  in  the  county  of  Hunter- 
don  all  the  time  but  about  five  years  during  the  war,  when  I 
lived  in  New  Brunswick  ;  I  am  acquainted  with  Peter  Wil- 
liamson, the  son  of  old  Samuel  Williamson  ;  I  lived  within 
about  two  miles  of  him  until  about  a  year  or  two  before  I  went 
to  New  Brunswick,  in  1810  or  1811. 

Question  by  Mr.  Wall. — What  is  and  has  been  the  general 
reputation  of  Peter  Williamson  iu  the  neighborhood  where  he 
1ms  lived,  among  his  neighbors,  for  truth  and  veracity  ? 

£Mr.  Saxton  objects  to  the  question.] 

Witness. — Not  good  ;  his  character,  generally,  is  decidedly 
bad  ;  a  man  of  no  truth. 

And  being  further  examined  on  the  part  of  the  complainant*, 
the  witness  further  saith — Can't  say  I  ever  heard  that  he  could 
not  be  believed  under  oath  ;  I  have  had  great  dealings  with 
him,  and  found  him  a  man  void  of  principle  and  truth  ;  I  once 
lent  him  $1250  to  pay  off  a  mortgage  which  one  Whitenack 
had  against  his  property  ;  he  gave  me  a  bond  and  mortgage 
for  the  amount;  he  took  the  money  and  appropriated  it  to 
other  purposes,  never  paying  off  Whiteuack'a  mortgage,  and  I 


592         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

lost  the  whole  of  it ;  it  was  $1200  or  $1250, 1  forget  which  ;  this 
was  while  I  lived  in  New  Brunswick. 

.  William  Rake,  a  witness  produced  on  the  part  of  the  de- 
fendant, being  duly  sworn,  saith — I  was  sixty-four  the  13th  of 
last  June;  I  have  always  lived  in  the  county  of  Hunterdon, 
except  three  years,  when  I  lived  in  the  county  of  Philadelphia; 
I  lived  about  2|  miles  from  the  farm  where  Williamson  lived, 
until  Williamson  left  the  county,  except  about  a  year  or  so  at 
the  latter  end  of  the  time  I  lived  at  Flemington,  about  seven 
miles  from  him  ;  I  was  constable  at  Amwell  seven  years  of  that 
time. 

What  was  and  is  the  general  reputation  of  Peter  Williamson 
among  his  neighbors,  for  truth  and  veracity? 

Witness. — It  stood  very  bad  for  both  truth  and  honesty,  and 
has  done  so  ever  since  I  first  knew  him,  which  was  before  he 
moved  on  the  old  homestead  farm. 

By  agreement  of  counsel  Mr.  Rake  states — I  went  yesterday 
to  the  burying-ground  described  yesterday  by  Peter  Williamson, 
to  see  the  gravestone  of  Micha  De  Hart ;  I  took  a  young  man 
with  me  from  Six  Mile  Run  ;  we  found  her  gravestone,  but 
the' date  of  her  death  was  not  on  it;  I  then  went  to  the  daugh- 
ter of  Mieha  De  Hart,  Sarah  De  Hart ;  she  produced  an  old 
Dutch  Bible,  which  she  said  was  the  family  Bible,  containing 
the  family  record  of  births  and  deaths ;  the  old  lady's  death 
was  there  recorded  ;  it  was  14th  of  March,  1790;  I  told  her  it 
was  the  grandmother  of  Peter  Williamson  I  wanted  to  know 
about ;  she  said  that  was  the  lady. 

And  being  cross-examined  on  the  part  of  the  complainants, 
the  witness  further  saith — I  have  heard  something  said  against 
the  character  of  Peter  Williamson  as  a  witness  under  oath  :  he 
was  called  on  a  trial  once  at  Sergeantville,  and  swore  there  to 
what  the  people  of  the  neighborhood  generally  said  they  be- 
lieved was  not  true;  I  know  of  no  other  instance  where  his 
truth  under  oath  was  questioned  ;  don't  recollect  what  he  swore 
at  Sergeantville. 

Charles  Bartles,  a  witness  produced  on  the  part  of  the  de- 
fendant, being  duly  sworn,  saith — The  receipt  I  spoke  of  on 
my  former  examination,  I  think  purported  to  be  signed  by  Wil- 
liam Williamson  ;  I  don't  recollect  whether  the  name  wassigred 


JANUARY  TERM,  184G. 


v.  Adrn'ra  of  Johnson. 


or  a  mark  made  ;  I  did  not  know  the  handwriting;  was  not 
acquainted  with  the  parties,  and  knew  nothing  about  it;  I  don't 
know  who  signed  as  witness,  nor  whether  it  was  genuine;  all 
I  knew  about  it  was  that  there  was  such  a  paper  ;  Abraham 
Williamson  was  a  client  of  Col.  Saxtou's  in  another  suit  against 
Asher  Williamson,  at  the  time  mentioned  in  my  former  ex- 
amination ;  that  was  a  suit  in  chancery,  returnable  April 
Term,  1825  ;  there  was  also  a  proceeding  on  citation,  issued 
out  of  Hunterdon  Orphans'  Court  by  Abraham  Williamson 
against  Asher  Williamson,  administrator  of  William  William- 
son, deceased,  returnable  February  Term,  1825  ;  my  impression 
is,  that  there  was  a  proceeding  in  Hunterdon  Orphans'  Court 
by  Abraham  Williamson,  in  which  Mr.  Saxton  was  his  counsel, 
to  revoke  the  letters  of  administration  of  Asher  Williamson, 
administrator  of  William  Williamson,  deceased  ;  don't  recollect 
whether  there  was  a  decree  revoking  the  letters  or  not  ;  all  the 
time  which  I  mentioned  on  my  former  examination,  during 
which  Abraham  Williamson  was  at  the  office  of  Col.  Saxton,  I 
think  he  was  a  client  of  Col.  Saxton's. 

And  on  a  cross-examination  on  the  part  of  the  complainants, 
he  further  saith  —  I  was  not  acquainted  with  the  handwriting 
of  William  Williamson  ;  I  am  still  of  the  same  opinion  that  I 
was  on  my  former  examination,  that  Abraham  Williamson  stole 
the  receipt  therein  mentioned  ;  I  do  not  know  what  became  of 
that  chancery  suit;  I  think  Abraham  did  not  prosecute  either 
of  the  suits  against  Asher  after  the  receipt  was  missing. 

The  counsel  of  the  defendant  presented  a  receipt  from  Mary 
Smock  to  Asher  Williamson,  administrator  of  William  William- 
son, deceased,  dated  September  30th,  1831,  which  was  marked 
"Exhibit  6  for  the  defendant  ;"  handwriting  of  Elisha  War- 
ford  admitted. 

Also  a  receipt  from  Thomas  Bailey  and  Micha  Bailey  to  Asher 
Williamson,  administrator  of  William  Williamson,  dated  Sep- 
tember 28th,  1831,  which  was  marked  "Exhibit  7  for  the  de- 
fendant;" handwriting  of  Elisha  Warford  admitted. 

Also  a  copy  of  the  letter  of  administration  granted  in  Ken- 
iucky  to  Perry  Weakley,  of  Margaret  Wilson,  Samuel  William- 
son and  Cornelius  Williamson,  which  was  marked  "  Exhibit  8 
for  the  defendant." 


594         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

Also  a  power  of  attorney  from  Perry  Weakley,  administrator 
of  Margaret  Wilson,  to  Abraham  Williamson,  which  was 
marked  "Exhibit  9  for  the  defendant." 

Also  a  power  of  attorney  from  William  Williamson  and  Ricli- 
and  Williamson  to  Abraham  Wilfiamson,  which  was  marked 
"  Exhibit  10  for  the  defendant," 

Also  a  letter  of  administration  granted  to  Abraham  William- 
son, in  Kentucky,  of  the  estate  of  William  Williamson,  deceased, 
which  was  marked  "Exhibit  11  for  the  defendant." 

Also  a  power  of  attorney  from  John  Williamson,  of  Ohio,  to 
Abraham  Williamson,  which  was  marked  "  Exhibit  12  for  the 
defendant." 

Also  a  certified  copy  of  the  letter  of  administration  of  William 
Williamson,  deceased,  granted  in  Scott  county,  Kentucky,  to 
Abraham  Williamson,  which  was  marked  "  Exhibit  13  for  the 
defendant." 

Also  an  affidavit  taken  by  John  Williamson,  in  the  State  of 
Ohio,  which  was  marked  "  Exhibit  14  for  the  defendant." 

Also  a  power  of  attorney  from  Abraham  Williamson  to  Joseph 
Williamson,  which  was  marked  "Exhibit  15  for  the  defendant." 

April  14th,  1842,  Joab  Stout,  a  witness  produced  on  the  part 
of  the  complainants,  being  duly  sworn,  saith — I  am  acquainted 
with  Peter  Williamson,  and  have  known  him  thirty  years  ;  he 
now  resides  about  a  mile  and  a  half  from  my  present  residence, 
and  has  resided  there,  as  I  suppose,  a  dozen  years  •  I  cannot  say 
particularly  what  is  his  character  as  a  man  of  truth  and  ver- 
acity in  the  neighborhood  where  he  resides  ;  I  had  dealings  with 
him,  and  we  always  came  out  right ;  I  found  him  well  enough  ; 
J  should  believe  him  under  oath  ;  I  don't  know  anything  to  the 
contrary  of  his  beiyg  believed  under  oath  in  his  neighborhood. 

And  being  cross-examined  on  the  part  of  the  defendant,  saith 
— When  I  first  knew  Peter  Williamson  he  lived  somewhere  about 
the  Neshanic,  about  a  dozen  miles  from  me;  I  then  had  no 
particular  acquaintance  with  him  ;  I  became  more  particularly 
acquainted  with  him  during  the  last  dozen  years;  lie  has  often 
been  at  my  house  during  this  time,  but  I  have  never  been  in  his 
house;  I  hired  his  boy  once  of  him,  and  we  settled,  and  had 
no  difficulty  about  it,  and  I  had  no  scruple  but  what  he  settled 
fair ;  I  have  had  no  other  business  transaction  with  him  but 


JANUARY    TERM,   1846.  595 


Williamson  v.  Adm'rs  of  Johnson. 


tliis;  I.  don't  think  that  I  have  ever  heard  his  character  for 
truth  or  veracity  impeached;  I  should  not  object  to  him  if  I 
had  a  suit  peudiiig;  his  boy  worked  for  me  about  a  mouth; 
Williamson  aud  I  are  very  iutimate  and  friendly  ;  I  frequently 
talked  with  him  as  he  would* be  coming  along  by  my  house,  but 
there  has  been  very  little  visiting  between  us;  I  am  a  farmer, 
and  hired  the  boy  to  work  on  the  farm ;  I  never  knew  of  Wil- 
liamson being  sworn  in  a  cause  as  a  witness ;  I  never  heard  any 
of  his  neighbors  express  any  opinion,  one  way  or  the  other,  as  to 
his  being  believed  under  oath. 

Peter  Snook,  a  witness  produced  on  the  part  of  the  complain- 
ants, being  duly  sworn,  saith — I  am  acquainted  with  Peter  Wil- 
liamson, aud  have  known  him  twenty  years ;  for  a  dozen 
years  or  more  he  has  lived  within  a  mile  and  a  quarter  from  my 
residence;  our  lj|nd  is  about  two  or  three  hundred  yards  apart; 
I  know  nothing  of  his  character  for  truth  aud  veracity  in  his 
neighborhood  but  what  is  right;  he  would  make  promises 
sometimes  which  he  would  not  perform,  but  that  is  common  ;  I 
have  had  dealings  with  him  for  twenty  years,  off  and  on,  aud 
when  he  got  the  money  he  would  pay  it;  I  know  nothing  of 
him  but  what  was  honest. 

And  being  cross-examined  on  the  part  of  the  defendant,  saith — 
I  follow  milling;  not  now  myself,  but  my  sou  does,  but  I  have 
followed  it  these  forty  years;  my  principal  dealings  with  Wil- 
liamson have  been  for  grain  and  flour,  at  the  mill ;  I  have  had 
other  dealings  with  him,  but  I  cannot  recollect  what  they  were, 
exactly ;  we  were  very  intimate  as  neighbors ;  he  is  frequent- 
ly at  my  house,  and  I  at  his;  when  I  spoke  of  his  not  perform- 
ing his  promises,  I  meant  his  promises  to  pay  money  for  tilings 
he  had  got ;  he  never  dis-puted  his  account;  I  never  heard  any 
of  his  neighbors  impeach  his  honesty,  truth  or  veracity;  I  don't 
recollect  that  I  ever  heard  any  of  his  neighbors  talk  on  the  sub- 
ject of  his  being  a  man  of  truth  or  not;  I  don't  know  of  there 
being  any  reports  in  the  neighborhood  about  him  as  a  man  of 
truth ;  I  cau  remember  better  what  happened  thirty  years  ago 
and  more  than  what  happened  lately. 

I  had  dealings  with  Williamson  before  be  moved  where  he 
now  lives ;  that  is  the  reason  why  I  came  to  know  him  so  well ; 
I  never  knew  him  to  be  examined  as  a  witness  in  a  cause  iu 


596         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

court ;  I  never  heard  his  character  discussed  in  any  w;iy  in  Ins 
neighborhood. 

Andrew  Stillwell,  a  witness  produced  on  the  part  of  the 
complainants,  being  duly  sworn,  saith — I  am  acquainted  with 
Peter  Williamson  ;  have  been  particularly  acquainted  with  him 
for  thirty  years;  more  particularly  for  the  last  twenty  years;  for 
the  last  twelve  years  our  premises  joined,  but  for  two  or  three 
years  of  this  time  Williamson  did  not  live  on  these  premises; 
this  was  in  the  township  of  Am  well ;  I  moved  from  there  the 
fifth  of  April  instant,  to  the  city  of  Trenton  ;  I  believe  the  char- 
acter of  Williamson  in  the  neighborhood  where  he  lives  stands 
pretty  fair;  I  know  nothing  against  it. 

And  being  cross-examined  on  the  part  of  the  defendant,  saith — 
Williamson's  dwelling-house  was  about  half  a  mile  from  mine; 
Williamson  and  I  are  on  intimate  terms  as  neighbors;  have 
always  been  friendly;  he  was  very  frequently  at  my  house,  and 
I  have  often  been  at  his;  we  have  had  considerable  business 
transactions  together. 

And  being  again  examined-in-chief  on  the  part  of  the  com- 
plainants, saith — I  have  heard  the  character  of  Williamson,  as 
to  truth  and  veracity,  talked  about  since  the  service  of  the  sub- 
poenas in  this  cause — talked  about  by  his  present  neighbors;  his 
character  was  favorably  spoken  of,  and  it  seemed  to  be  a  matter 
of  surprise  that  his  character  was  brought  in  question  ;  I  have 
never  heard  anything  said  against  his  character  in  his  neigh- 
borhood, for  truth  and  veracity,  in  anything  serious;  I  have 
never  heard  his  character  for  truth  and  veracity  questioned 
till  this  suit;  I  may  have  heard  some  things  said  against  his 
character  in  jest;  very  few  escape  this;  I  cannot  state  what  I 
have  heard  said  against  him,  even  in  jest,  but  have  heard  him 
talked  about;  think  I  have  heard  him  lightly  spoken  of  in  jest 
but  cannot  say  when,  or  by  whom;  have  never  heard  his  word 
brought  seriously  in  question. 

And  being  again  cross-examined  on  the  part  of  the  defendant, 
Buiih — When  1  have  heard  him  spoken  of  in  jest  it  would  be 
hU  endeavoring  to  excite  levity  aud  merriment;  when  people 
>puke  of  him  thus,  i  suppose  they  spoke  aa  they  thought;  be- 
Jieve  tins  is  the  only  way  in  which  I  have  ever  heard  his  moral 
character  lightly  spoken  of;  believe  I  have  never  heard  any 


JANUARY  TERM,  1816.  597 

Williamson  v.  Adm're  of  Johnson. 

reports  in  his  neighborhood  affecting  his  moral  character ;  his 
want  of  punctuality  in  his  payments  I  have  heard  talked  of; 
can't  tell  all  of  the  neighbors  that  have  expressed  surprise  since 
the  service  of  the  subpoenas  in  this  cause,  at  his  veracity  being 
questioned  ;  I  have  heard  my  nearest  neighbors,  Andrew  H. 
Quick,  William  Bodine,  Jacob  Reed,  of  New  Market,  a  mile 
from  Williamson's;  Benjamin  Price,  of  the  same  place;  David 
Larew,  also  of  the  same  place,  a  married  man  about  23  or  24 
years  of  age;  William  Young,  near  Snyder  Town — all  these, 
and  I  think  several  others,  whose  names  I  cannot  now  recollect, 
I  have  heard  express  surprise  at  his  character  for  truth  being 
questioned,  and  we  all  agreed  that  we  would  be  willing  to  take 
his  oath  ;  Samuel  Larew,  the  father  of  David  Larew,  also  ex- 
pressed the  same  opinion  ;  I  was  subpoenaed  last  fall  in  thin 
cause,  and  it  is  since  that  time  I  have  heard  these  persons  speak 
of  Williamson  as  above  stated  ;  the  conversation  was  intro- 
duced in  consequence  of  the  service  of  the  subpoenas,  but  can't 
state  particularly  how  the  conversation  was  brought  about ;  I 
suppose  it  was  known  that  Williamson's  veracity  was  brought  in. 
question  because  of  the  service  of  the  subpoanas ;  the  subprenas 
did  not  state  anything  about  his  veracity  ;  William  H.  Johnson, 
one  of  the  complainants,  served  the  subpoenas,  and  stated  that 
he  wanted  witnesses  to  sustain  the  character  of  Williamson ; 
this,  Johnson  told  me,  when  he  served  a  subpoena  on  me. 

Daniel  Larew,  a  witness  produced  on  the  part  of  the  com- 
plainants, being  duly  sworn,  saith — I  am  acquainted  with  Peter 
Williamson ;  have  known  him  as  long  as  I  have  known 
anyone — about  45  or  46  years;  lived  in  the  same  neighborhood 
with  him  about  25  or  26  years  ;  he  moved  out  of  this  neighbor- 
hood more  than  twenty  years  ago;  during  his  residence  there  I 
never  heard  anything  contrary  to  his  being  a  man  of  truth  and 
veracity  ;  since  that  period  I  know  nothing  against  his  character 
for  truth  and  veracity. 

And  being  cross-examined  on  the  part  of  the  defendant,  saith — 
I  don't  recollect  where  Williamson  moved  to  after  he  left  my 
neighborhood  ;  for  a  few  years  after  he  left  my  neighborhood, 
I  saw  him  frequently,  but  have  not  seen  him  often  for  several 
years  last  past — perhaps  two  or  three  times  for  the  last  twelve 
years;  when  he  lived  in  my  neighborhood,  I  don't  know  that 


598         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

I  ever  heard  his  character  for  truth  and  veracity  talked  about ; 
don't  know  as  I  have  heard  his  name  mentioned  for  several 
years  back  ;  I  might  have  known  him  to  be  sworn  as  a  witness 
in  a  cause,  but  don't  now  recollect. 

Uriah  Button,  a  witness  produced  on  the  part  of  the  com- 
plainants, saith — Peter  Williamson  lived  in  my  neighborhood, 
about  three  miles  off;  he  lived  there  when  I  first  remember, 
and  moved  away  between  twenty  and  thirty  years  ago ;  I  was 
personally  acquainted  with  him,  but  not  very  intimate;  there 
was  not  a  great  deal  of  intercourse  between  us  ;  we  were  friendly 
when  we  met;  don't  recollect  ever  hearing  his  character  for 
truth  and  veracity  scrupled  at  that  time  in  the  neighborhood  ; 
don't  recollect  ever  hearing  it  brought  in  question,  or  hearing 
anything  about  it ;  know  nothing  about  it  of  my  own  knowledge ; 
think  Uriah  Bonura  died  in  the  spring  of  1809. 

William  Young,  a  witness  produced  on  the  part  of  the  com- 
plainants, being  duly  sworn,  saith — I  am  acquainted  with  Peter 
Williamson;  have  been  acquainted  with  him  about  thirty-five 
years;  I- now  live  about  a  mile  and  a  half  from  him,  and  have 
so  lived  for  about  twelve  years  past;  before  this,  he  lived  about 
a  mile  further  up  in  the  mountain,  in  the  neighborhood  ;  he 
has  lived  in  the  neighborhood  about  fifteen  years,  more  or  less; 
his  character  stands  about  like  the  commonalty  of  people;  I 
have  heard  nothing  against  it,  for  my  part;  never  heard  any- 
thing against  his  character  for  truth  and  veracity  before  he  came 
into  this  neighborhood. 

And  being  cross-examined  on  the  part  of  the  defendant, 
saith — I  never  heard  anything  in  the  neighborhood,  one  way  or 
the  other,  about  his  character  for  truth  and  veracity ;  he  and  I 
are  on  intimate  terms  as  neighbors. 

Andrew  H.  Quick,  a  witness  produced  on  the  part  of  the 
complainants,  being  duly  sworn,  saith — I  am  acquainted  with 
IV'ter  Williamson  ;  have  been  acquainted  with  him  for  about 
twenty  years;  live  within  three-quarters  of  a  mile  from  him, 
and  have  so  lived  for  about  ten  or  twelve  years  last  past;  for 
one  or  two  of  the  twenty  years  spoken  of,  he  lived  out  of  the 
neighborhood — for  the  rest  of  the  time,  in  it;  I  don't  know  but 
what  his  character  for  truth  and  veracity  in  my  neighborhood  is 
good;  have  never  heard  it  condemned;  don't  know  that  I 


JANUARY  TERM,  1846.  599 

Williamson  v.  Adm'ra  of  Johnson. 

over  heard  anything  against  his  character  for  truth  and  veracity 
before  or  since  he  has  been  in  my  neighborhood. 

And  being  cross  examined  on  the  part  of  the  defendant,  saith 
— I  have  never  heard  his  character  for  truth  and  veracity  brought 
in  question  one  way  or  the  other,  till  these  subpoenas  were  served 
in  th  is  cause;  William  H.Johnson,  one  of  the  complainants,  served 
a  subpoena  on  me,  and  said  he  wanted  me  to  prove  the  veracity 
of  Peter  Williamson  ;  have  had  a  little  dealing  with  Peter  Wil- 
liamson ;  not  a  great  deal ;  he  has  had  grain  and  flour  of  me 
•>metimes;  he  and  I  are  on  intimate  terms;  not  visiting  often  ; 
he  frequently  calls  at  my  house,  and  I  have  been  often  at  his;  I 
am  not  quite  thirty-nine  years  of  age. 

And  being  again  examiued-in-chief  on  the  part  of  the  com- 
plainants, saith — Since  the  service  of  the  subpoenas  in  this  cause 
1  have  heard  nothing  against  his  character  for  truth  and  veracity. 

Jacob  Reed,  a  witness  produced  on  the  part  of  the  complain- 
ants, being  duly  sworn, saith — I  am  acquainted  with  Peter  Wil- 
liamson ;  have  known  him  for  the  last  fifteen  years;  I  live 
about  a  mile  from  him,  and  have  so  lived  for  the  last  ten  or 
twelve  years ;  had  some  little  acquaintance  with  him  before  he 
came  to  my  neighborhood  ;  don't  know  but  what  his  character 
for  truth  and  veracity  stand  fair  as  far  as  I  know  or  have  heard  ; 
have  heard  nothing  said  against  his  character  for  truth  and  ver- 
acity till  after  the  subpoenas  were  served  ;  since  their  service  I 
have  heard  nothing  said  against  his  character  for  truth  and  ver- 
acity ;  have  never  heard  that  his  character  for  truth  and  veracity 
was  ever  questioned  in  any  other  case  than  in  this  cause. 

And  being  cross-examined  on  the  part  of  the  defendant,  saith 
— Mr.  Johnson,  one  of  the  complainants  in  this  cause,  told  me 
that  his  truth  and  veracity  was  impeached  when  he  subpoenaed 
me;  Williamson  and  I  are  on  friendly  and  intimate  terms. 

Philip  Rake,  a  witness  produced  on  the  part  of  the  complain- 
ants, being  duly  sworn,  saith — I  am  acquainted  with  Asher 
Williamson,  the  defendant  in  this  cause  ;  have  been  acquainted 
with  him  thirty  or  forty  years;  Cornelius  Williamson  and  I 
were  securities  on  his  bond  as  administrator  of  William  Wil- 
liamson, deceased  ;  he  came  to  my  house  one  day  and  wanted 
me  to  go  with  him  to  the  surrogate's  office  to  be  one  of  his 
Becurities  as  above;  I  tcld  him  it  likely  would  not  be  settled 


600         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adtn'rs  of  Johnson. 

in  a  great  while,  and  I  did  not  like  it  much  ;  he  said  he  did  not 
know  as  it  would  make  a  great  deal  of  difference,  for  he  would 
soon  settle  it  up;  I  asked  him  what  amount  of  estate  there 
would  be;  he  said  he  did  not  think  there  would  be  over  four 
or  five  hundred  dollars — it  might  reach  five  ;  so  I  went  up  with 
him  and  became  one  of  his  securities,  as  stated  ;  I  was  acquainted 
with  Abraham  Williamson,  said  to  be  the  son  of  William  Wil- 
liamson, deceased  ;  he  came  to  this  state  about  the  year  1825  ; 
he  said  he  came  from  Kentucky  ;  I  heard  Asher  Williamson, 
the  defendant,  say  there  was  not  more  than  three,  four  or  five 
hundred  doll,ars  coming  to  this  Abraham  Williamson,  from 
Kentucky,  if  he,  the  said  Abraham  Williamson,  would  settle 
right,  and  that  he  need  not  make  such  a  fuss  about  it ;  when 
Asher  said  there  would  not  be  more  than  three,  four  or  five  hun- 
dred dollars  coming  to  Abraham  Williamson,  I  did  not  know 
whether  he  meant  the  share  coming  to  Abraham  or  to  all  the 
heirs  of  William  Williamson,  deceased  ;  nothing  was  said  about 
that ;  the  three,  four  or  five  hundred  dollars  spoken  of  by  Asher 
Williamson  to  me,  I  took  to  be  coming  from  the  estate  of  Wil- 
liam Williamson,  deceased,  and  that  this  would  settle  the  whole 
estate,  but  I  can't  say  that  Asher  said  so. 

Question  by  the  counsel  for  the  complainants. — "  Had  you  any 
conversation  with  Abraham  Williamson  about  the  existence  of 
a  receipt  given  by  his  father,  William  Williamson,  to  Samuel 
Williamson,  executor  of  William  Williamson  the  elder,  deceas- 
ed ?"  [This  question  objected  to  by  the  counsel  for  the  defend- 
ant.] Witness  answers  that,  on  a  certain  occasion,  Abraham 
Williamson  called  on  me  to  go  with  him  to  Mr.  Saxton's  office, 
and  said  he  would  show  me  the  amount  he  demanded  ;  I  went 
up  with  him,  and  as  we  were  going  along  he  said  if  that  devil- 
ish receipt  was  out  of  the  way,  he  would  then  recover  a  large 
sum  of  money  ;  in  a  few  days,  or  a  week,  afterwards,  he  called 
at  my  house  and  said  that  that  receipt  was  gone,  and  now  he 
could  recover  a  large  sum  of  money  ;  Asher  Williamson  and  I 
once  talked  about  this  receipt,  and  he  said  if  there  was  such  a 
receipt,  it  was  a  forged  one,  and  he  thought  Peter  Williamson 
had  forged  it,  or  helped  do  it,  anyhow;  this  conversation  with 
Asher,  I  think,  took  place  after  Abraham  Williamson  told  me 
the  receipt  was  gone* 


JANUARY  TERM,  1846.  601 


Williamson  v.  Adm're  of  Johnson. 


And  being  cross-examined  on  the  part  of  the  defendant,  saith 
— I  can't  say  where  Asher  and  I  were  when  he  talked  about  the 
receipt;  I  don't  know  that  Abraham  Williamson  was  a  son  of 
William  Williamson,  or  whose  son  he  was;  I  don't  know  what 
accounts  there  were  to  settle  between  Asher  and  Abraham  Wil- 
liamson ;  my  wife  was  present  when  Abraham  Williamson 
told  me  that  the  devilish  receipt  was  gone;  think  I  went  to 
the  surrogate's  office  to  be  security  for  Asher,  as  the  administra- 
tor of  William  Williamson,  the  day  after  he  spoke  to  me  to  go 
there;  think  he  called  for  me,  and  we  all  went  up  together; 
there  was  no  one  present  but  my  wife,  when  Asher  spoke  to 
me  to  be  his  security;  don't  know  that  Asher  told  me,  at  this 
time,  that  he  did  not  know  what  the  amount  of  the  estate  would 
be;  think  we  gave  bond  in  $2000;  I  have  never  been  called 
on  to  pay  anything  as  security  for  Asher. 

William  Stout,  a  witness  produced  on  the  part  of  the  de- 
fendant, being  duly  sworn,  saith — I  have  lived  all  my  life,  in 
the  old  township  of  Am  well,  including,  now,  the  townships  of 
Delaware  and  Raritan ;  lam  now  in  my  62d  year;  for  thirty 
years  past,  I  have  followed  farming;  previous  to  that,  black- 
smithing;  I  hold  now,  the  commission  of  justice  of  the  peace  for 
this  county;  have  held  the  office  of  justice  of  the  peace  between 
fourteen  and  fifteen  years,  and  that  of  judge,  four  or  five  years  ; 
I  am  acquainted  with  Peter  Williamson,  spoken  of  by  the  pre- 
ceding witness;  have  known  him  between  forty  and  fifty  years 
— perhaps  forty-five  years;  lived  two  miles  and  a  quarter  from 
him,  for  six  years,  and,  while  I  thus  lived,  did  his  work  for  him, 
as  a  blacksmith,  and  had  an  opportunity  of  seing  him  two  or 
three  times  a  week;  I  then  lived  in  the  present  township  of 
Delaware;  during  this  time,  I  was  intimately  acquainted  with 
him;  this  was  from  1803  to  1809;  after  this  time,  1  moved 
to  my  present  residence,  in  Amwell,  and  he  to  Somerset  county, 
and  our  intimate  acquaintance  ceased;  since  that  time,  we  have 
seen  each  other  occasionally;  when  we  lived  in  the  same  neigh- 
borhood together,  he  was  not  considered,  at  that  time,  a  man  that 
stuck  strictly  to  the  truth ;  it  is  a  pretty  hard  question  to  solve ; 
I  do  not  thiuk  he  always  told  me  the  truth. 

His  brother  William  told  me  he  did  not  know  when  to  be- 
lieve him;  that  he  was  a  man  that  would  leave  the  truth; 

VOL.  i.  2p 


602         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

that  he  was  his  brother,  and  he  was  sorry  to  say  it.     [Oltject- 
ed  to.] 

I  did  a  good  deal  of  work  for  him,  during  these  six  years; 
his  reputation  for  truth  and  veracity,  in  his  neighborhood,  was 
not  the  first ;  it  was  bad  ;  he  was  considered  a  man  not  to  be 
believed  at  all  times;  I  know  nothing  about  his  being  believed 
under  oath;  never  recollect  of  being  where  he  was  called  as  a 
witness,  and  know  nothing  of  his  reputation  in  this  respect; 
never  heard  any  one  say,  as  I  recollect,  that  he  was  not  to  be 
believed  under  oath. 

And  being  cross-examined  on  the  part  of  the  complainants, 
saith — I  reside  from  Peter  Williamson,  at  this  tirue,  about  three 
and  a  half  or  four  miles;  don't  hear  but  what  his  character, 
in  the  neighborhood  where  he  now  resides,  is  fair,  though  I 
don't  hear  much  about  him  ;  I  have  had  very  little  knowledge 
of  him,  lately,  and  don't  know  that  I  have  seen  him  for  five  or 
six  years;  as  an  instance  of  his  not  being  a  man  of  truth,  in  his 
former  neighborhood,  he  would  tell  you  of  certain  performances 
which  would  never  come  to  pass;  he  would  never  perform;  he 
would  tell  what  he  had  done,  which  he  had  not  done,  and  prom- 
ised to  do  other  things,  which  he  did  not  do;  he  was  lively 
in  his  disposition,  too,  and  loved  to  tell  a  good  story,  and  make 
people  laugh ;  when  I  worked  for  him,  he  said  he  would  pay 
me  at  such  a  time,  &c.,  but  he  never  did,  and  when  I  broke  up 
shop,  he  disappointed  me  as  to  the  times  of  payment  for  my 
work;  he  came  and  settled  the  account  with  me,  honorably 
and  fairly,  but  did  not  pay  the  money,  and  afterwards  settled 
with  the  constable,  at  my  suit;  I  have  frequently  heard  it  said,  in 
the  neighborhood,  that  he  was  not  to  be  believed — that  he  made 
promises  to  pay  money,  and  would  lie  people  out  of  it;  I  mean 
by  this,  that  he  made  promises  to  pay,  and  would  not  perform 
them;  I  mean  that  he  did  not  pay  at  the  times  he  promised; 
in  the  neighborhood,  when  anything  was  told,  and  it  was  said 
that  Peter  Williamson  told  it,  it  was  not  believed;  this  was 
when  I  was  in  intimate  habits  with  the  man  ;  I  can't  say  how 
it  is  now ;  I  hope  he  does  better ;  the  stories  I  refer  to,  were  of 
matters  that  were  said  to  have  taken  place  among  young  people 
at  his  singing-school. 

And  being  cxamined-in-chief,  on  the  part  of  the  defendant, 


JANUARY   TERM,  1846.  603 

Williamson  v.  Adm'rs  of  Johnson. 

saith — He  would  not  have  been  believed  in  the  neighborhood  aa 
to  any  matter,  the  truth  of  which  depended  on  his  word  alone; 
I  can't  say  that  this  reputation  of  his  extended  to  any  serious 
matters  of  business;  I  don't  know  of  any  matter  of  business  in 
which  he  would  have  been  believed  by  me  or  the  neighbors  ;  he 
might  have  been  believed  in  business  of  importance;  I  can't  say 
whether  he  would  or  not ;  I  never  knew  him  tried  in  the  im- 
portant matters  to  which  I  now  allude. 

And  being  again  cross-examined  on  the  part  of  the  complain- 
ants, saith — I  never  heard  of  his  reputation  that  if  called  aa 
a  witness  under  his  solemn  oath,  he  was  not  to  be  believed ;  it 
would  depend  on  circumstances  whether  he  was  to  be  believed, 
in  his  account  of  a  settlement  between  two  neighbors,  at  which 
he  was  present;  some  men  might  have  a  better  opinion  of  him 
than  others  and  might  believe  him  ;  I  don't  know  whether  or 
not  it  would  be  believed  in  general ;  it  might  be  believed  by 
some  persons,  and  might  not  by  others. 

And  being  again  exarnined-in-chief  on  the  part  of  the  de- 
fendant, saith — In  what  I  have  said  of  Peter  Williamson's  rep- 
utation, I  speak  of  his  immediate  neighborhood  at  that  time;  I 
never  heard  any  reputation  about  him  at  all,  one  way  or  the 
other,  as  a  witness  under  oath,  and  I  give  no  opinion  myself  as 
to  his  reputation  under  oath. 

May  25th,  1842,  Cornelius  Lake,  a  witness  produced  on  the 
part  of  the  complainants,  being  duly  sworn,  saith — I  had  form- 
erly sumo  knowledge  of  William  Williamson,  the  brother  of 
old  Samuel  Williamson  ;  I  was  small  when  I  was  acquainted 
with  him;  he  lived  near  my  father;  while  I  was  a  boy  he 
moved  to  the  western  country ;  he  afterwards  came  back  to 
this  country,  but  I  can't  state  the  time  within  ten  years,  that  I 
know  of;  I  recollect  the  time  when  the  Williamson  farm  was 
set  up  for  sale ;  I  mean  the  farm  that  was  owned  by  the  father 
of  William  Williamson  ;  I  don't  recollect  the  name  of  the  father 
of  William  Williamson  ;  I  am  not  right  certain  whether  Wil- 
liam Williamson  came  back  to  this  country  before  or  after  the 
sale  of  the  Williamson  farm,  but  it  rather  strikes  me  it  was  af- 
ter the  sale;  I  don't  think  I  had  any  conversation  with  William 
Williamson  when  he  came  back,  but  I  saw  him  at  old  Mrs. 
Armviue's;  I  heard  old  Mrs.  Arnwiue  and  William  William- 


604         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

son  talk  about  his  father's  estate ;  he  was  stating  to  her  that 
his  brother,  Samuel  Williamson,  had  offered  him  between  40  and 
50  shillings  per  acre  for  his  share;  Mrs.  Arnwine  said  she 
would  not  take  it,  for  it  was  worth  more;  he  said  if  he  lived 
here  he  would  not  take  it,  but  that  the  expense  of  coming  here 
and  a  lawsuit  would  be  so  much  that  he  did  not  ,know  but  what 
it  would  be  as  much  profit  for  him  to  take  it  as  to  leave  it  ;  I 
don't  recollect  of  anything  else  being  said  about  the  property  ; 
I  don't  remember  of  seeing  William  Williamson  but  at  this  one 
time ;  I  don't  recollect  how  long  he  remained  in  this  country  at 
that  time ;  I  might  have  seen  him  afterwards,  but  I  don't  recol- 
lect. 

And  being  cross-examined  on  the  part  of  the  defendant,  saith — 
I  did  not  understand  from  what  William  Williamson  said 
whether  he  would  or  would  not  positively  accept  of  his  brother 
Samuel's  offer ;  I  never  saw  him  in  New.  Jersey  after  this  time  ; 
William  Williamson  did  not  say  whether  he  would  or  would 
not  accept  of  his  brother  Samuel's  offer  further  than  I  have 
stated  ;  he  said  nothing  about  it  one  way  or  the  other,  more 
than  I  have  stated. 

November  22d,  1842,  Daniel  Larue,  a  witness  produced  on 
the  part  of  the  complainants,  being  duly  sworn,  saith — I  went 
to  the  western  country  with  Asher  Williamson,  the  defendant 
in  this  cause,  in  the  fall  of  the  year  1811 ;  at  this  time  I  went 
with  him  to  the  house  of  his  uncle,  John  Williamson  ;  his  un- 
cle, John  Williamson,  lived  at  this  time  in  the  State  of  Ohio, 
within  twenty  miles  of  a  place  called  New  Lancaster;  I  am 
connected  with  the  Williamson  family ;  my  grandmother  was 
a  sister  of  the  father  of  defendant;  in  a  conversation  between 
the  defendant  and  his  uncle  John,  at  the  time  spoken  of,  de- 
fendant proposed  to  his  uncle  John  to  buy  his  (John's)  share 
of  his  father,  William  Williamson's,  estate ;  this  share  was 
considered  to  be  in  the  State  of  New  Jersey ;  I  did  not  hear 
defendant  make  any  other  offer  for  this  share  than  $40 ;  de- 
fendant told  his  uncle  John  that  there  was  something  coming  to 
him,  but  did  not  know  how  much  ;  that  he  would  be  willing  to 
give  him  $40  at  a  venture  for  it;  that  there  would  have  to  be 
a  contention  for  it,  considerable  trouble  and  expense,  but  that 
he  would  venture  to  give  him  $40  for  it;  John  Williamson 


JANUARY  TERM,  1846.  6C5 

Williamson  v.  Adm'rs  of  Johnson. 

hesitated  a  while  about  taking  it — said  there  was  considerable 
coming,  but  he  did  not  know  how  he  should  get  it;  he  finally 
concluded  to  take  it ;  this  was  a  few  days  before  we  came  away; 
John  Williamson  came  on  with  us  as  far  as  his  son  John's, 
where  the  writings  were  executed  ;  there  was  no  contention  about 
John  Williamson's  share  of  his  father,  William  Williamson's, 
estate,  at  this  time;  I  believe  the  lawsuit  was  pretty  much 
ended  at  this  time  ;  I  recollect  William  Williamson,  the  brother 
of  John  Williamson,  being  in  the  State  of  New  Jersey,  from  the 
State  of  Virginia,  about  fifty  years  ago;  I  have  frequently  heard 
the  Williamson  family  speak  of  William  Williamson's  being 
here,  as  I  have  stated  ;  I  recollect  seeing  Abraham  Williamson 
here  about  the  year  1827  ;  this  Abraham  Williamson  was  the 
son  of  William  Williamson,  the  brother  of  John,  and  came  from 
the  State  of  Kentucky  ;  heard  Abraham  Williamson  say,  when 
he  was  here,  that  there  was  a  receipt  from  his  father  William, 
to  Benjamin  Johnson,  for  a  part  of  his  share  of  his  father, 
William  Williamson's,  estate;  I  am  unable  to  say,  with  cer- 
tainty, who  this  receipt  was  from,  or  to  whom  it  was  given,  but 
that  it  was  in  favor  of  Benjamin  Johnson,  and  was  in  the  hands 
of  Mr.  Saxton,  and  that  he  had  destroyed  it ;  have  heard  Abra- 
ham Williamson  tell  this  story  very  frequently. 

Othniel  Lake,  a  witness  produced  on  the  part  of  the  com- 
plainants, being  duly  sworn,  saith — My  grandmother  and  de- 
fendant's father  were  brother  and  sister. 

The  complainants  here  offer  evidence  of  the  declarations  of 
defendant's  father,  defendant  himself,  his  brothers  and  himself, 
and  it  is  excepted  to,  so  far  as  relates  to  the  declarations  of  de- 
fendant's father  and  brothers. 

Witness  says  it  was  always  a  talk  amongst  defendant  and 
his  father  and  brothers,  that  Samuel  Williamson,  from  the  pro- 
ceeds of  the  first  sale,  had  paid  to  the  boys  one  hundred,  and 
to  the  girls,  fifty  pounds,  except  Cornelius,  who,  it  was  said, 
would  not  receive  anything ;  I  mean  the  proceeds  of  the  sale 
of  the  old  homestead  of  William  Williamson,  the  father  of  Wil- 
liam and  Samuel  Williamson  ;  it  was  also  talked  that  receipts 
had  been  given  for  these  shares  ;  after  this  suit  was  brought,  I 
heard  the  defendant  say  that  these  receipts  ought  to  have  been 
brought  in  before,  when  they  settled ;  among  the  receipts  there 


606         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

was  one  talked  of  for  £100  given  by  William  to  Samuel  Wil- 
liamson ;  after  the  death  of  Cornelius  Williamson,  the.  father 
of  defendant,  the  receipt  last  spoken  of  was  talked  about,. and 
I  have  heard  it  talked  of  scores  of  times  ;  I  can't  say  how  soon 
after  the  death  of  Cornelius  Williamson  I  first  heard  this  receipt 
talked  about — it  might  have  been  ten  years  or  two  years  ;  I 
had  heard  of  this  receipt  before  this  suit  was  brought;  I  can't 
say,  positively,  that  I  ever  heard  defendant  say  anything  about 
this  receipt  till  after  the  suit  was  brought,  and  I  can't  say  that 
I  did  not;  I  don't  recollect  that  I  have  ever  heard  defendant 
say  anything  about  the  payment  of  £100  by  Samuel  William- 
son to  William  Williamson  ;  I  have  heard  defendant's  brother 
William  speak  about  it,  and  I  don't  doubt  I  have  heard  defend- 
ant speak  about  it,  but  I  can't  recollect;  it  was  always  talked 
of  so  amongst  the  family;  I  never  heard  it  denied;  shortly 
after  the  death  of  defendant's  father,  there  was  a  good  deal  of 
talk  between  my  family  and  defendant's  about  the  payments  to 
the  heirs  of  old  William  Williamson's  estate — I  mean  about 
the  payments  of  £100  to  the  boys,  and  £50  to  the  girls  ;  Abra- 
ham Williamson,  the  son  of  William  Williamson  the  younger, 
was  here  from  the  State  of  Kentucky,  a  year  or  two  before  the 
court-house  in  this  county  was  burned  in  1826-27 ;  he  said  he 
was  here  to  receive  his  father  William's  share  of  his  grandfather 
William  Williamson's  estate, -and  he  said  he  had  a  power  of  at- 
torney for  the  purpose,  and  that  he  was  the  administrator  in 
Kentucky  of  his  father's  estate ;  he  said  that  his  father  had 
received  £100  of  his  brother,  Samuel  Williamson,  of  the  estate 
of  William  Williamson  the  elder,  and  had  given  a  receipt  for  it; 
and  he  said  he  would  deduct  this  out  of  his  father's  share,  and 
settle  with  defendant;  the  suit  was  then  pending  between  Ben- 
jamin Johnson  and  defendant;  in  a  conversation  between  Abra- 
ham Williamson  and  Benjamin  Johnson,  Abraham  Williamson 
said,  nay  father  has  received  the  £100  from  Samuel  William- 
son, and  has  given  a  receipt  for  it,  and  he  was  willing  to  deduct 
that  out  of  his  father's  share;  Johnson  said  it  was  more  than 
£100;  Williamson  said  it  was  but  £1-00,  as  he  had  always 
understood  from  his  father,  and  the  receipt  would  speak  for 
itself;  some  three  or  four  months  after  this,  Abraham  William- 
sou  carne  to  my  house,  and  in  conversation  said,  Mr.  Johnson 


JANUARY  TERM,  1846.  607 

Williamson  v.  Adm'rs  of  Johnson. 

IMS  lost  his  claim  now,  but  if  you  and  I  were  in  Flemington, 
behind  Bmmell's  big  shed,  under  a  big  stone,  I  could  show  you 
a  paper  that  would  tell  all  about  it;  I  understood  him  to  refer 
to  this  receipt;  I  remarked  to  him  that  whether  he  had  got  this 
receipt  honestly  or  dishonestly  he  ought  to  tell  no  man,  for  he 
might  get  into  a  deal  of  trouble  by  it ;  I  never  before  this  time 
heard  that  this  receipt  was  lost;  I  never  heard  its  existence  de- 
nied till  after  this  ;  he  would  sometimes  say  that  Mr.  Bartles 
had  destroyed  it,  and  sometimes  that  Mr.  Saxton  had  destroyed 
it,  and  that  Mr.  Saxton  would  accuse  Mr.  Bartles  of  selling  it. 
And  being  cross-examined  on  the  part  of  the  defendant,  says — 
His  wife  and  children  were  present  during  the  conversation  of 
Abraham  Williamson  at  his  house,  as  he  has  stated  ;  when  I  told 
him  that  he  ought  not  to  tell  any  man  about  the  receipt,  he 
made  no  reply  ;  I  recollect  of  hearing  William  Williamson, 
brother  of  defendant,  talk  about  the  payment  aforesaid,  to  the 
heirs  of  William  Williamson,  and  I  don't  recollect  distinctly  of 
hearing  any  other  one  of  the  family  talk  about  it,  but  I  have  no 
doubt  1  have  heard  defendant  talk  about  it,  and  I  have  never 
heard  it  denied ;  I  have  heard  defendant  say,  since  the  suit 
was  brought,  that  if  there  was  such  a  paper  it  ought  to  have 
been  produced  at  the  time  of  the  settlement;  I  don't  recollect 
of  ever  hearing  defendant  say  anything  else  than  this  about 
this  payment  or  receipt;  I  have  heard  William,  defendant's 
brother,  talk  about  it,  at  my  father's  office  ;  I  think  that  Cor- 
nelius Williamson,  the  father  of  the  defendant,  died  more  than 
thirty  years  ago ;  I  might  have  been  fifteen  years  old  at  the 
time;  I  shall  be  fifty-one  years  of  age  the  19th  January  next; 
for  aught  I  know,  defendant  and  I  are  on  friendly  terms;  I 
believe  we  generally  g|>eak  when  we  meet;  some  years  ago  we 
had  some  disputes,  and  we  had  a  trial  at  law,  and  I  don't  know 
whether  it  is  settled  yet  or  not;  we  have  not  had  much  inter- 
course since  this  dispute  ;  I  don't  recollect  distinctly  of  ever  hear- 
ing Cornelius  Williamson,  the  father  of  the  defendant,  talk 
about  the  payment  to  William  Williamson  and  the  receipt  for 
£100,  but  heard  him  say  the  heirs  were  all  paid  but  him,  and 
he  would  not  have  any  if  he  could  not  get  more  ;  I  don't  recol- 
lect particularly  of  hearing  any  of  defendant's  brothers  besides 
William  talk  about  this  payment  or  receipt;  J  have  heard  Wil- 


608         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

liam  talk  about  it  more  than  any  of  the  rest;  I  never  heard 
William  say  that  he  knew  of  his  own  knowledge  that  such  a 
receipt  had  been  given  by  his  uncle  William  ;  I  don't  mean  to 
say  that  I  ever  heard  any  of  the  family  say  that  they  knew  that 
such  a  receipt  had  been  given  ;  I  have  heard  my  grandmother 
talk  more  about  it  than  anybody  else;  I  never  heard  Abraham 
Williamson  deny  that  such  a  receipt  had  been  given  by  his 
father,  but  after  he  told  me  the  story  about  the  stone  behind  Bon- 
nell's  shed,  he  said  if  they  had  such  a  receipt,  let  them  produce  it. 
In  April,  1843,  the  cause  was  heard  in  the  Court  of  Chancery, 
before  William  Pennington,  Chancellor,  and  in  July,  1843,  an 
interlocutory  decree  was  made  as  follows  :  "It  appearing  to  the 
court  that  Samuel  Williamson,  the  executor  of  William  Wil- 
liamson the  elder,  deceased,  in  the  pleadings  in  this  case  men- 
tioned, on  the  2d  day  of  April,  1792,  paid  to  William  William- 
son the  younger,  in  the  pleadings  also  mentioned,  the  sum  of 
£131  10s.  for  his  share  of  the  proceeds  of  the  first  sale  of  the 
real  estate  of  the  said  William  Williamson  the  elder,  deceased, 
made  by  the  said  Samuel  Williamson,  deceased,  as  in  the  plead- 
ings mentioned,  for  which  said  payment  a  receipt  and  acquit- 
tance, bearing  date  on  that  day,  was  made  and  given  by  the 
said  William  Williamson  the  younger,  to  the  said  Samuel  Wil- 
liamson, executor  as  aforesaid,  as  in  the  pleadings  mentioned. 
And  it  further  appearing  to  the  court  that  the  said  judgment 
recovered  in  the  Supreme  Court  of  this  state,  on  the  27th  day 
of  February,  in  the  year  of  our  Lord  1822,  in  the  name  of  Wil- 
liam S.  Peunington,  late  governor,  &c.,  to  the  use  of  Asher  Wil- 
liamson, as  administrator  of  William  Williamson  the  younger, 
deceased,  against  Benjamin  Johnson,  as  survivor  of  the  said 
Samuel  Williamson,  deceased,  as  in  the  pleadings  likewise  men- 
tioned, was  for  too  much  money,  and  that  the  said  defendant  in 
that  action  was  entitled  to  be  credited  for  the  said  payment 
made  by  the  said  Samuel  Williamson,  executor  of  the  said  Wil- 
liam Williamson  the  elder,  deceased,  to  the  said  William  Wil- 
.  lianison  the  younger,  on  the  2d  day  of  April,  in  the  year  of  our 
Lord  I792,on  the  first  sale  of  the  property  of  William  William- 
bon  the  elder,  deceased,  made  by  the  said  Samuel  Williamson, 
executor.  And  the  Chancellor  being  of  opinion  that  the  com- 
plainants in  this  case  are  entitled  to  the  relief  prayed  against 


JANUARY  TERM,  1846.  609 

Williamson  v.  Adin'rs  of  Johnson. 

the  said  Asher  Williamson.  It  is,  thereupon,  on  this  twelfth  day 
of  July,  in  the  year  of  our  Lord  1843,  by  William  Pennington, 
esquire,  Governor  and  Chancellor  of  the  State  of  New  Jersey, 
ordered,  adjudged,  aud  decreed  that  it  be  referred  to  James  N. 
Reading,  esquire,  one  of  the  masters  of  this  court,  to  take  au 
account,  and  ascertain  the  sum  actually  due  from  the  said  Ben- 
jamin Johnson,  as  survivor  of  the  said  Samuel  Williamson,  de- 
ceased, to  the  said  Asher  Williamson,  as  administrator  of  the 
said  William  Williamson  the  younger,  deceased,  at  the  time  of 
the  said  judgment  obtained  by  the  said  William  S.  Pennington, 
late  governor,  &c.,  against  the  said  Benjamin  Johnson,  after 
crediting  the  payment  so  made  by  the  said  Samuel  Williamson, 
as  executor  as  aforesaid,  to  the  said  William  Williamson  the 
younger,  on  the  2d  day  of  April,  in  the  year  of  our  Lard  1792, 
above  mentioned,  and  ascertain  the  excess  of  the  said  judgment 
over  the  amount  so  due  at  that  time;  and  that  the  said  master 
do  compute  interest  on  the  amount  of  said  excess,  from  the  time 
of  rendering  said  judgment,  up  to  the  date  of  his  report;  and 
that  he  make  report  to  this  court  with  all  convenient  speed; 
and  all  further  equity  and  directions  are  reserved.  In  making 
his  calculation,  the  master  will  deduct  from  the  said  judgment 
only  the  credit  aforesaid,  of  the  2d  of  April,  1792,  with  interest 
to  be  computed  from  that  date,  on  the  same,  at  the  rates  of  inter- 
est allowed,  during  the  time,  by  the  laws  of  this  state,  aud  will 
report,  distinctly,  what  the  aforesaid  credit,  with  the  interest 
thereon,  amounts  to,  up  to  the  date  of  the  report." 

On  the  3d  October,  1843,  James  N.  Reading,  master,  reported 
the  amount  due  to  the  complainants,  on  that  day,  to  be  $2256.27, 
as  by  his  schedule  annexed  to  said  report,  to  wit : 

The  proportion  of  share  of  moneys  arising  from  the 
second  sale,  and  net  rents  of  the  premises  in  the  plead- 
ings mentioned,  payable  to  William  Williamson,  Jr., 
under  the  will  of.William  Williamson,  Sr.,  deceased,  §1,744  88 

Amount  paid  by  Samuel  Williamson,  ex- 
ecutor, to  William  Williamson,  Jr.,  out  of 
the  proceeds  of  the  first  sale,  the  2d  April,         . 
1792,  £131  10s.,  equal  to $350  66 

Interest  thereon,  from  2d  April,  1792,  to 
the  time   Samuel  Williamson    received    the 


-610    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

balance  of  moneys  arising  from  the  second 
sale  and  net  rents,  out  of  the  Court  of  Chan- 
cery, 25th  June,  1814,  and  gave  bond — 22y., 
2m.  and  23d $545  67 

$896  33 


Balance  then  due  William  Williamson,  Jr §848  55 

Interest  from  25th  June,  1814,  to  27th  February, 
1822,  the  date  of  the  judgment  by  William  S.  Pen- 
nington,  governor,  &c.,  against  Benjamin  Johnson, 
survivor,  &c...  455  70 


$1,304  26 

Deducting  that  sum  from  amount  of  said  judgment, 
27th  February,  1822,  exclusive  of  costs,  which  was....  2,202  46 

Leaves  a  balance  or  excess  of  said  judgment,  over 
the  amount  actually  due  Asher  Williamson,  adminis- 
trator of  William  Williamson,  Jr 898  20 

Interest  thereon,  from  27th  February,  1822,  to  3d 
October,  1843— 21y.,  7m.  and  6d 1,358  07 

Amount  due  from  defendant  to  complainants $2,256  27 

On  the  13th  of  October,  1843,  at  a  Court  of  Chancery  held  at 
Trenton,  by  William  Pennington,  esquire,  Governor  and  Chan- 
cellor, it  was  "ordered,  adjudged,  and  decreed  that  the  said 
report,  and  all  matters  and  things  therein  contained,  be  con- 
firmed, and  that  the  said  defendant,  Asher  Williamson,  do  pay  to 
the  said  complainants,  William  H.  Johnson  and  John  T.  Neely, 
administrators  of  the  said  Benjamin  Johnson,  deceased,  the  said 
sum  of  $2256.27,  so  reported  to  be  due  from  him  to  them, 
together  with  lawful  interest  thereon,  from  the  said  3d  day  of 
October,  instant  (1843),  being  the  date  of  the  said  master's  report, 
until  paid,  and  that  the  said  complainants  have  execution  there- 
of by  writ  of  fieri  facias  against  the  goods  and  chattels,  lands, 
tenements,  hereditaments,  and  real  estate  of  the  said  defendant. 
And  it  is  further  ordered,  adjudged,  and  decreed  that  the  former 
decree  of  this  .court,  made  in  this  cause  on  the  16th  October, 
1839,  and  the  lien  thereof  on  the  property  of  the  said  defendant, 
subject  thereto,  stand  and  remain  in  force,  to  secure  payment  of 
the  debt  and  interest  aforesaid,  and  that  the  sheriff,  or  other 
officer  to  whom  the  said  writ  of  execution  shall  be  directed,  be 


JANUARY  TERM,  1846.  fill 

"Williamson  v.  Adm'rs  of  Johnson. 

therein  commanded,  that  of  the  goods  and  chattels  in  his  county 
of  the  said  Asher  Williamson,  he  cause  to  be  made  the  debt 
and  interest  aforesaid.  And  if  sufficient  goods  and  chattels  of 
the  said  Asher  Williamson  cannot  be  found  in  his  county,  that 
then  he  cause  the  whole  or  the  residue,  as  the  case  may  require, 
of  the  said  debt  and  interest  to  be  made  of  the  lands,  tenements, 
hereditaments  and  real  estate  whereof  the  said  Asher  William- 
son was  seized  on  the  said  16th  of  October,  1839,  or  at  any  time 
afterwards,  in  whose  hands  soever  the  same  may  then  be." 

From  this  decree  the  said  Asher  Williamson  appealed  to 
the  Court  of  Errors  and  Appeals,  stating  in  his  petition  of  ap- 
peal that  he  finds  himself  aggrieved  by  a  final  decree  made  in 
the  Court  of  Chancery,  by  His  Excellency  William  Pennington, 
Governor  and  Chancellor  of  New  Jersey,  bearing  date  the  13ih 
day  of  October,  in  the  year  of  our  Lord  1843,  wherein  the  said 
William  H.  Johnson  aiul  John  T.  Neely,  administrators,  &c., 
of  Benjamin  Johnson,  deceased,  were  complainants,  and  Asher 
Williamson,  defendant,  in  this  respect,  to  wit,  that  the  said 
decree  adjudged  that  the  said  Asher  Williamson,  the  petitioner, 
do  pay  unto  the  said  complainants,  William  H.  Johnson  and 
John  T.-Neely,  administrators,  <fec.,  of  Benjamin  Johnson,  de- 
ceased, the  sum  of  $2256.27,  with  interest  thereon  from  the 
3d  day  of  October,  in  the  year  last  aforesaid.  And  appealing 
from  the  said  decree,  upon  the  ground  that  the  same  is  errone- 
ous, for  that  the  petitioner  is  not  indebted  to  the  said  complain- 
ants in  the  said  sum,  or  any  part  thereof,  nor  was  he  in  any 
manner  or  way  liable  to  the  said  complainants  for  the  said  sum 
of  money,  or  any  part  thereof. 

The  cause  was  argued  by 

G.  D.  Wall  and  P.  D.  Vroom,  for  the  appellant. 
W.  Halstedy  for  the  respondents. 

Cases  cited  by  the  counsel  for  the  appellant.  6  Johns.  Ch.  R. 
90 ;  1  Ibid.  51,  406 ;  3  Ibid.  351,  356  ;  1  Johns.  Ca.  436  ;  6 
Wheat.  109,  113;  Saxton  29,  113;  Elm.  Dig.  3,  ATo.  8;  6 
Johns.  Ch.  479,  481  ;  1  Soh.  and  Lrf.  201  ;  1  Johns.  Ch.  323  j 
7  Crunch  336. 


612         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

Cases  cited  by  the  counsel  for  the  respondents.  1  Spencer's 
Rep.  214 ;  1  Green's  Oh.  40 ;  5  Hal.  Rep.  276,  277  ;  4  Ibid. 
411  ;  1  Mod.  6;  Gould's  PL  152,  153;  Willes  366;  4  Johns. 
Rep.  536;  Free,  in  Ch,  233;  4  Price's  Exch.  136,  140,  126; 
1  Ves.  289  ;  2  Ves.,  Jr.,  132,  135  ;  3  Atk.  224,  234  ;  2  P.  Wins. 
424,  426 ;  2  Story's  .%,  §  879 ;  1  Wash.  C.  C.  Rep.  320 ;  2 
f%u>.  342,  269  ;  1  Dess.  172  ;  4  J6iW.  176  ;  7  Term  Rep.  269. 

THE  CHIEF  JUSTICE  delivered  the  following  opinion  : 

It  appears  by  the  state  of  the  case  in  this  cause,  (consisting 
of  155  closely-printed  octavo  pages,)  that  William  Williamson 
the  elder  died  seized  and  possessed  of  certain  real  estate,  in  this 
state,  sometime  in  the  year  1765,  having  first  made  and  exe- 
cuted his  will,  by  which  he  gave  to  his  wife  the  use  of  all  his 
estate,  real  and  personal,  during  her  wjdowhood,  and  after  her 
death  or  marriage,  directed  his  executors  to  take  the  same  in 
possession  and  dispose  of  the  same;  that  within  two  years  after 
such  event  they  should  sell  the  lands;  that  out  of  the  moneys 
arising  from  such  sale,  the  executors,  in  three  years  thereafter, 
should  pay  certain  legacies  to  his  two  daughters,  and  divide  the 
residue  equally  among  his  five  sons,  Cornelius,  Samuel,  John, 
William  and  Abraham,  and  his  two  daughters,  Micha  and  Mar- 
garet, except  that  Abraham  should  have  £100  more  than  the 
rest;  and  appointed  his  sons  Cornelius  and  Samuel  his  execu- 
tors. That  the  widow  lived  on  the  premises  until  she  died, 
which  was  in  December,  1787.  Cornelius,  the  oldest  son,  never 
proved  the  will,  but  Samuel  did  prove  the  same,  on  the  16th 
June,  1774.  That  on  the  llth  March,  1789,  two  years  after 
the  death  of  his  mother,  Samuel  offered  the  farm  for  sale  at 
auction,  having  given  previous  notice  of  such  sale;  that  Cor- 
nelius and  several  of  the  brothers  were  there,  but  refused  to  bid; 
that  Samuel  directed  his  own  son  Cornelius  to  bid,  and  he  did 
bid,  for  the  farm,  forty-two  shillings  the  acre.  Samuel,  the  ex- 
ecutor, did  not  then  strike  it  off;  but,  for  want  of  a  better  offer, 
on  the  9th  of  August,  1792,  he  conveyed  the  farm  to  his  said 
eon  Cornelius,  who,  soon  after,  re-conveyed  the  farm  to  his 
father,  Samuel.  That  the  farm,  according  to  the  ancient  deeds, 
contained  only  290  acres,  but  upon  a  re-survey  was  found  to 


JANUARY  TERM,  1846.  613 

Williamson  v.  Adm'rs  of  Johnson. 

contain  about  90  or  100  acres  more.  That  the  testator's  sou 
Cornelius  took  possession  of  the  excess,  claiming  it  as  heir-at- 
law.  That  Samuel  Williamson,  the  executor,  paid  the  lega- 
cies; that  his  brother  Abraham  had  died  intestate  and  without 
issue;  and  that  on  the  2d  April,  1792,  he  divided  the  residue 
of  the  amount  of  sale  of  the  said  farm,  at  forty-two  shillings 
an  acre,  into  four  equal  parts,  being  £127  5s.  each ;  and  hav- 
ing retained  one  share  for  himself,  he,  on  that  day,  paid  to  his 
brother,  William  Williamson,  £131  10s.  for  his  share,  and  took 
his  receipt  and  acquittance  therefor  in  full.  That  on  the  30th 
September,  1793,  he  paid  his  brother  John  in  part,  and  on  the 
3d  of  October,  he  paid  him  the  balance,  and  took  his  receipt  ; 
and  that  he  afterwards,  as  he  alleges,  settled  with  his  brother 
Cornelius  for  his  share,  leaving  the  dispute  about  the  surplus 
land  unsettled.  That  the  said  Cornelius  afterwards  died,  leav- 
ing a  will,  and  leaving,  six  children,  viz.,  William,  Cornelius* 
Asher,  Joseph,  Bern  ice,  Patience  and  Micha.  It  further  ap- 
pears that  on  the  20th  November,  1809,  the  said  children  of 
Cornelius,  the  brother  of  Samuel,  filed  a  bill  against  Samuel, 
to  set  aside  the  sale  made  by  him,  and  for  an  account.  The 
case  recites  this  bill,  and  the  answer  of  Samuel  to  the  same, 
which  was  put  in  on  the  10th  July,  1810,  and  the  proceedings 
thereon;  by  which  it  appears  that  on  the  llth  of  September, 
1811,  Chancellor  Bloomfield  decreed  that  the  sale  by  Samuel 
was  fraudulent  and  void ;  that  the  whole  farm  should  be  re-sold 
by  him.  under  the  direction  of  a  master;  that  the  sale  should 
be  reported  to  the  court,  and  the  proceeds  should  be  brought  into 
court;  that  the  master  should  take  an  account  of  rents  and 
profits  from  the  llth  March,  1789,  when  Samuel  took  posses- 
sion under  his  own  sale,  &c.  That  on  the  24th  October,  1812, 
the  master  reported  that  the  rents  and  profits  which  ought  to  be 
charged  to  Samuel,  amounted  to  §2760;  and  that  he  ought  to 
be  allowed  for  improvements,  $505.  Exceptions  were  filed  by 

Samuel  to  this  report,  in  March  Term,  1813.  On  the day  of 

,  A.  D. ,  Samuel  Williamson,  under  the  direction  of  the 

master,  sold  the  entire  farm  for  the  sum  of  $7923.31 ;  which 
being  brought  into  court,  the  cause  came  on  to  be  heard  before 
Chancellor  Ogden,  upon  the  equity  reserved,  in  September, 
1813;  and  on  the  22d  October,  1813,  the  Chancellor  made  a 


614         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adra'rs  of  Johnson. 

decree  that  the  master  should  pay,  out  of  the  moneys  in  court, 
to  the  representatives  of  Cornelius,  the  son  of  the  testator,  Wil- 
liam Williamson  the  elder,  the  one-fifth  part  of  the  sum  of 
$10,178.21,  the  aggregate  amount  of  the  sales  last  aforesaid, 
and  of  the  rents  and  profits  reported  by  the  master,  after  de- 
ducting therefrom  £100  given  to  the  two  daughters,  and  £100 
given  by  the  testator  to  his  son  Abraham,  with  interest  from 
1792,  when  those  legacies  were  paid  by  Samuel,  and  after  de- 
ducting also  $173.80  for  the  master's  fees  ;  and  that  the  mas- 
ter should  pay  over  the  residue,  after  deducting  the  complain- 
ant's costs,  to  the  said  Samuel,  to  be  by  him  disposed  of  accord- 
ing to  the  will  of  his  father,  upon  his  giving  bond  with  security, 
&c.  A  re-hearing  was  then  moved  for  and  granted.  It  took 
place  in  June,  1814,  before  William  S.  Pennington,  Chancellor, 
who,  on  the  llth  June,  1814,  decreed  that  the  sum  of  $523.33, 
which  had  been  allowed  to  Samuel  for  money  paid  to  his  broth- 
er Cornelius  as  his  share  of  the  proceeds  of  the  first  sale,  should 
be  stricken  out,  so  as  to  increase  the  sum  due  to  Cornelius  by 
that  amount,  and  make  it  $1744.88  instead  of  $1221.55;  and 
confirmed  the  decree  in  all  other  respects. 

By  the  decree  of  William  S.  Pennington,  Chancellor,  made  in 
June  Term,  1814,  the  share  of  William  Williamson  was  fixed 
at  $1744.88.  For  this  sum,  with  interest  from  the  date  of  that 
decree,  Asher  Williamson,  as  administrator  of  William  William- 
son,'recovered  judgment  against  Benjamin  Johnson,  and  raised 
the  whole  amount  on  execution. 

By  the  decree  of  William  Pennington,  Chancellor,  the -above 
Piun  was  too  much  by  the  amount  of  £131  10s.  paid  by  Samuel 
Williamson  to  William  Williamson  on  the  2d  April,  1792,  with 
interest  thereon  from  that  time  to  the  25th  June,  1814,  the  date 
of  the  decree  of  the  first  Chancellor  Penuington. 

The  account  will  then  stand  thus  : 
25th  June,  1814.     Amount  of  share  then  decreed  to 

be  due  William  Williamson $1,744  88 

Deduct  from  that,  1st,  £131  10s.,  equal  to $350  66 

Interest  at  7  percent,  from   2d   April,  1792, 

to  25th  June,  1814,  22y.,  2m.  23d 545  67 

896  23 


Shows  the  decree  was  too  much  by $848  55 


JANUARY  TERM,  1846.  615 

Williamson  v.  Adnrrs  of  Johnson. 

As,  therefore,  Asher  Williamson,  as  administrator  of  William 
Williamson,  sued  for  and  received  of  Benjamin  Johnson  $848.55 
too  much,  with  interest  from  the  25th  June,  1814,  Johnson  is 
entitled  to  recover  back  that  sum,  with  interest  from  that  time 
to  the  3d  October,  1843,  the  date  of  master  Reading's  report. 
The  account  will  then  stand  thus — 

Amount  of  excess  decreed  by  Chancellor  William 
S.  Pennington,  the  25th  June,  1814,  as  William 
Williamson's  share $896  33 

Interest,  at  7  per  cent,,  from  25th  June,  1814,  till 
4th  July,  1824,  (when  interest  was  reduced  to  6  per 
cent.,)  10  years,  21  days 622  15 

Interest  from  4th  July,  1824,  at  6  per  cent.,  to  3d 
October,  1843,  the  date  of  master  Reading's  report, 
19  years  and  3  months 1183  92 


$2602  45 

That  there  once  existed  a  receipt  or  acquittance,  in  writing, 
from  Willia'm  Williamson  to  Samuel  Williamson,  for  £131  10s., 
bearing  date  the  2d  April,  1792,  I  am  entirely  convinced.  It 
is  established  beyond  all  doubt,  by  the  testimony  of  Mr.  Saxton 
and  Mr.  Bartles.  Their  testimony  was  given  at  a  time  when 
the  facts  and  circumstances  stated  by  them  must  have  been 
fresh  in  their  memory. 

That  that  writing  was  surreptitiously  abstracted  from  the 
office  of  Mr.  Saxton,  I  am  fully  convinced  ;  at  any  rate,  it  has 
been  destroyed  or  lost,  beyond  recovery,  and  therefore  its  non- 
production  fully  accounted  for.  I  am  equally  well  satisfied  it 
was  genuine,  and  not  a  forged  or  spurious  instrument;  and,  if 
so,  we  are  bound  to  believe  that  the  money  mentioned  in  it  was 
actually  paid  by  Samuel  Williamson,  according  to  the  tenor  of 
the  writing. 

It  is  admitted  by  the  defendant — at  least  it  cannot  be  denied, 
for  the  record  proves  it — that  he  obtained  a  judgment  against 
Johnson  for  the  whole  amount  of  William  Williamson's  share 
of  his  father's  estate,  without  any  allowance  for  this  disputed 
payment.  It  is  equally  true  that  the  defendant  obtained  the 
whole  amount  of  that  judgment,  with  interest  and  costs,  by  a 
sale,  nnuer  execution,  of  what  (at  least  between  him  and  Johnson) 
was  Johnson's  property. 


61G         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

It  follows,  then,  that  the  defendant  actually  received,  as  ad- 
ministrator of  his  uncle,  William  Williamson,  £131  10s.  more 
than  he  ought  to  have  done,  with  interest  upon  it  from  the  time 
it  became  due  from  his  uncle  Samuel  to  his  uncle  William  Wil- 
liamson, up  to  the  date  of  the  judgment,  with  interest,  again, 
upon  the  aggregate  amount  from  that  time  until  he  received  the 
money  from  the  sheriff;  and,  consequently,  that  the  defendant, 
in  fact  and  in  conscience,  now  owes  to  Johnson  the  sum  of 
£131  10s.,  with  such  accumulated  interest  upon  it. 

Johnson  now  seeks  to  recover  back  this  money  ;  and  con- 
science at  once  asks,  why  should  he  not?  The  answer  to  this 
question  has  been  given  us  in  the  shape  of  various  objections, 
which  have  been  taken  and  pressed  with  great  learning  and 
ability  by  the  defendant's  counsel. 

Before  I  proceed,  however,  to  consider  these  objections,  I 
cannot  refrain  from  noticing  the  fact  that,  for  all  that  appears, 
the  defendant  has  the  money  yet,  or  has  applied  it  to  his  own  use; 
at  least  I  see  no  evidence  on  the  record  that  he  has  ever  paid 
one  dollar  of  it  to  the  children  of  William  Williamson.  If  so, 
he  may,  in  a  court  of  equity,  be  fairly  considered,  as  to  this 
excess  of  payment,  a  trustee  for  Johnson  ;  and  if  he  pays  it  to 
him  under  the  direction  of  the  Chancellor,  he  is  in  no  danger  of 
being  compelled  to  pay  it  over  again  to  the  children  of  his  intes- 
tate, William  Williamson. 

Nevertheless,  this  court  cannot  affirm  this  decree,  and  compel 
the  defendant  to  pay  back  the  money  to  Johnson,  unless  we 
can  do  so  upon  sound  and  safe  principles,  settled  and  recog- 
nized, or  at  least  clearly  withiti  the  powers  and  attributes  of  a 
court  of  equity. 

What,  then,  are  the  objections  urged  by  the  defendant's 
counsel  ?  They  are  as  follows  : 

1.  That  Johnson  has  no  locus  standi  in  court.  He  had  no 
title  or  interest  in  the  lands  which  were  sold  for  the  satisfaction 
of  the  judgment.  He  had  conveyed  the  lands  to  William  H. 
and  Clarissa  Johnson,  his  children,  in  fee,  for  the  fraudulent 
purpose  of  defeating  the  judgment  creditor.  That  that  con- 
veyance, although  void  as  against  the  plaintiff  in  execution,  waa 
valid  and  effectual,  to  all  intents  and  purposes,  in  law  and  in 
equity,  as  against  him ;  that  if  an  excess  of  money  had  beeu 


JANUARY   TERM,  1846.  617 

Williamson  v.  Adm'ru  of  Johnson. 

raised  by  the  sheriff  on  the  execution,  he  must  have  paid  it  to 
William  H.  and  Clarissa  Johnson,  and  not  to  their  father;  and, 
consequently,  he  has  no  title  to  any  of  the  money  recovered  on 
that  judgment,  even  if  the  judgment  was  for  more  than  it 
ought  to  have  been.  That  if  there  was  an  error  in  the  judg- 
ment, as  that  judgment  was  paid  by  the  children,  they,  and  not 
their  father,  were  the  persons  who  ought  to  have  come  here  to 
get  it  back.  That  if  he  was  now  living,  and  the  defendant  was 
ready  and  willing  to  refund  the  money,  he  could  not  safely  pay 
it  to  Johnson,  but  would  be  bound  to  pay  it  to  his  children. 

The  argument  is  plausible,  but  not  sound.  In  the  first  place, 
if  it  was  a  fraudulent  conveyance  the  children  were  parties  to 
that  fraud,  and  could  have  no  better  standing,  at  law  or  in  equity, 
to  recover  back  that  money,  than  their  father  had.  Ergo,  the 
defendant  may  retain  the  excess  of  the  judgment,  and  the  sher- 
iff might  have  retained  the  surplus  money  which  arose  on  the 
sale.  The  statement  of  this  result  is  a  sufficient  refutation  of 
the  argument. 

Suppose  a  judgment  clearly  shown  to  have  been  obtained  by 
fraud,  or  admitted  to  have  been  given  by  mistake,  for  twice  as 
much  as  it  ought  to  have  been,  would  a  court  of  equity  refuse 
relief  to  the  defendant,  because  he  was  a  bad  man  and  had  con- 
veyed away  his  property  to  defeat  his  creditors  ?  Would  the 
court  say  to  him,  you  are  a  bad  and  dishonest  man,  and  there- 
fore we  won't  help  you;  we  won't  relieve  you  against  a  plain 
mistake,  or  even  a  judgment  obtained  against  you  by  the  gross- 
est fraud  ?  I  think  not.  ' 

When  a  man  comes  into  court  to  get  hold  of  property  which, 
by  his  own  fraud  or  injustice,  has  got  into  the  hands  of  his  ad- 
versary, or  his  title. to  which  is  founded  in  fraud  or  injustice,  a 
court  of  equity  will  not  hear  him.  It  is  sufficient  to  say  this  is 
not  such  a  case.  The  maxim  cited  by  counsel  does  not  apply 
to  it — a  court  of  equity  will  not  inquire  into  a  man's  character 
before  it  will  relieve  him  against  fraud,  accident  or  mistake,  un- 
less by  his  own  dishonest  or  unjust  conduct  he  got  himself  into 
the  difficulty  he  wants  the  court  to  get  him  out  of. 

But  again.  Whether  that  conveyance  from  Johnson  to  his 
children  was  a  fraudulent  one  or  not,  is  not  a  material  issue  in 
this  cause.  The  plaintiff  in  the  judgment  got  his  money,  and 

VOL.  i.  2  Q 


618         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

whether  the  conveyance  was  fraudulent  or  not,  is  of  no  conse- 
quence to  him. 

Again.  Whether  fraudulent  or  not,  Johnson  was  bound  by 
his  covenants  to  his  children,  and  was  responsible  over  to  them. 
He  conveyed  the  premises,  whether  with  or  without  considera- 
tion, to  his  children,  legally  subject  to  that  judgment,  and  there- 
fore was  legally  liable  over  to  them.  Admitting,  therefore,  that 
they,  as  owners  of  the  land  which  had  been  sold  to  satisfy  the 
judgment,  might,  in  the  lifetime  of  their  father,  have  come  into 
equity  to  get  back  the  excess ;  they  cannot  do  it  now,  for  they 
have  recognized  their  father's  right  to  the  money  by  making 
themselves  complainants  in  this  suit,  and  have  thereby  estopped 
themselves  from  ever  claiming  the  money  in  their  own  right.  I 
am,  for  all  these  reasons,  of  opinion  that  there  is  nothing  in  this 
objection. 

2.  It  is  objected  that  the  order  to  amend  was  on  payment  of 
costs  and  serving  a  copy  of  the  amended  bill  gratis  ;  that  this 
was  a  condition  precedent,  and  was  never  performed,  so  that,  in 
fact,  the  defendant  considered  the  suit  as  at  an  end,  and  that  his 
counsel  told  him,  when  the  Chancellor  pronounced  his  opinion 
sustaining  the  plea  and  demurrer,  that  there  was  an  end  of  the 
suit,  and  he  might  go  home,  and  would  never  hear  any  more 
of  it. 

As  to  what  his  counsel  may  have  told  him,  it  can  have  no 
influence  here.  He  and  his  solicitor  and  counsel  were  in  court 
when  the  decree  was  pronounced  ;  and  the  order  for  leave  to 
amend  was  embodied  in  the  very  decretal  order  sustaining  the 
plea  and  demurrer.  They  had  notice,  then,  that  the  suit  was 
not  at  an  end,  for  the  decree  does  not  dismiss  the  bill  out  of 
court,  but,  on  the  contrary,  in  its  very  terms,  retains  it  in  court, 
with  leave  to  the  complainant  to  amend  it.  It  was  the  duty, 
then,  of  the  defendant  to  attend  to  it,  and  follow  it  up,  and  if 
the  complainant  did  not  pay  the  costs,  amend  his  bill  and  serve 
a  copy  within  a  reasonable  time ;  he  should  have  applied  to  the 
Chancellor  for  a  final  decree  dismissing  the  bill  with  costs. 

As  to  the  non-performance  of  the  condition  precedent,  paying 
costs,  &c.,  it  was  a  mere  irregularity,  of  which  the  party  should 
have  availed  himself  at  the  time,  but  he  actually  waived  it  by 
subsequently  applying  for  leave  to  answer,  and  by  putting  in 


JANUARY  TERM,  1846.  619 

Williamson  v.  Adm're  of  Johnson. 

an  answer  to  the  amended  bill.  Instead  of  doing  that,  he 
ought  to  have  moved  the  Chancellor  to  dismiss  the  amended  bill, 
on  the  ground  that  no  costs  had  been  paid  and  no  copy  served. 
As  to  the  defendant's  having  no  knowledge  of  the  suit  being 
still  in  court  and  of  the  bill  having  been,  amended,  it  is  untrue, 
unless  TVfr.  Saxton  has  sworn  grossly  and  willfully  false.  But 
how  can  the  defendant  make  such  an  assertion,  when,  by  his 
own  affidavit,  he  has  admitted,  and,  in  fact,  expressly  stated, 
that  before  Mr.  Stockton's  death  he  received  notice  to  appoint 
another  solicitor?  That  he  afterwards  as  expressly  denied  it  in 
his  answer  cannot  relieve  him,  but  serves  only  to  weaken  our 
confidence  in  other  matters  sworn  to  by  him  in  his  answer. 

3.  The  third  objection  is,  that  the  suit  had  abated  by  the 
death  of  Johnson,  and  the  order  made  by  Chancellor  Vroora 
that  it  stand  revived  in  the  names  of  the  present  complainants 
was  a  nullity.  Coupled  with  this  exception,  it  was  insisted  that 
the  deposition  of  Mr.  Saxton,  made  after  that  order  of  revival, 
and  before  the  subsequent  one  made  by  Chancellor  Seely,  must 
be  ruled  out,  as  extra-judicial,  or  coram  non  judice,  there  be- 
ing no  suit  then  depending  in  court. 

If  I  am  not  mistaken,  the  deposition  of  Peter  Williamson, 
if  not  of  others  on  the  part  of  the  complainants,  stands  in  the 
same  category,  and  was  taken  under  the  same  circumstances. 
But,  however  that  may  be,  it  is  a  full  and  complete  answer  to 
the  whole  of  this  matter,  that  it  is  too  late  for  the  defendant  to 
complain  of  it.  In  the  first  place,  instead  of  applying  to  the 
Chancellor  to  open  the  decree  and  be  permitted  to  answer,  and 
to  cross-examine  the  witnesses,  he  ought  to  have  moved  the 
Chancellor  to  open  the  decree,  and  to  declare  the  suit  abated  by 
the  death  of  the  complainant ;  or  to  set  aside  all  the  proceed- 
ings which  had  taken  place  after  the  death  of  the  complainant 
and  before  the  revival  of  the  suit  by  the  order  of  Chancellor 
Seely,  as  coram  non  judice  and  void.  Secondly,  the  defend- 
ant must  be  considered  as  having  waived  this  irregularity  by 
putting  in  an  answer  to  the  bill,  taking  testimony  in  the  cause, 
and  cross-examining  witnesses  that  had  been  sworn  and  exam- 
ined on  the  part  of  the  complainant.  And  thirdly,  if  he  wanted 
to  get  rid  of  the  deposition  of  Mr.  Saxton,  the  defendant 
ought  to  have  moved  the  Chancellor,  before  the  cause  was  heard 


620         COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

upon  the  pleadings  and  proofs,  to  expunge  that  evidence  as 
unduly  and  irregularly  taken.  If  that  had  been  done,  the  com- 
plainant might  have  re-examined  Mr.  Saxton  before  the  hear- 
ing, and  removed  the  difficulty.  But,  surely,  the  Chancellor 
did  not  intend,  by  giving  the  defendant  leave  to  cross-examine 
the  witnesses  that  had  already  been  examined,  to  give  him  an 
opportunity  of  making  his  election  among  those  witnesses,  and 
then  on  the  hearing  of  the  cause  to  exclude  the  deposition  of 
Mr.  'Saxton  or  of  any  other  witness,  sworn  under  like  circum- 
stances, that  he  chose  not  to  re-examine.  This  would,  in  effect, 
have  been  to  permit  the  defendant  to  play  a  trick  on  the  com- 
plainant, and  practice  a  fraud  on  the  court. 

It  is  said,  however,  by  counsel,  that  Mr.  Saxton  'a  affidavit 
•was  a  mere  voluntary  one,  upon  which  no  perjury  could  be  as- 
signed. But  I  am  not  so  clear  that  the  proposition  is  true.  A 
cause  was  pending  in  court,  under  the  decretal  order  of  the 
Chancellor ;  and  however  irregularly  so,  the  witness  was  sworn 
in  that  cause. 

I  am  of  opinion  that  the  decree  appealed  from  should  be 
affirmed. 

NEVIUS,  WHITEHEAD,  RANDOLPH  and  CARPENTER,  Jus- 
tices, and  PORTER,  SCHENCK,  SPEER,  ROBERTSON  and  SPEN- 
CER, Judges,  concurred  with  the  Chief  Justice. 

The  PRESIDENT  dissented.  And,  having  prepared  no  writ- 
ten opinion  at  the  time  of  the  decision  of  the  cause,  has  furnished 
the  reporter  with  the  following  statement  of  the  grounds  of 
his  dissent. 

1st.  The  executor,  in  conveying  to  his  son,  in  August,  1792, 
was  guilty  of  a  fraud.  The  attempted  sale  and  conveyance 
have  been  decreed  to  be  fraudulent  and  void ;  and  the  case 
stands  as  if  no  such  conveyance  had  ever  been  made.  The 
money,  then,  which  it  is  alleged  William  Williamson  received 
from  Samuel  Williamson,  was  not  a  part  of  the  proceeds  of  a 
sale  of  the  real  estate,  but  Samuel  Williamson's  (lie  was  the 
executor)  own  money.  All  that  can  be  said  is,  that  William 
Williamson  received  from  Samuel  Williamson  money  for  which 
Samuel  Williamson  in  his  own  right,  not  as  executor,  might 


JANUARY  TERM,  1846.  621 

Williamson  v.  Adm'rs  of  Johnson. 

have  maintained  assumpsit.  But  his  remedy  was  lost  by  lapse 
of  time.  Samuel  Williamson  cannot  be  relieved  from  this  posi- 
tion unless  a  benefit  can  be  permitted  to  result  to  him  as  execu- 
tor from  his  fraudulent  act  as  an  individual.  This  cannot  be 
permitted. 

And,  in  point  of  fact,  the  money,  if  any  was  paid  to  William 
Williamson,  was  not  money  of  the  estate,  but  Samuel  William- 
son's own  money,  for  the  deed  to  his  son  was  not  then  made, 
and  was  not  made  until  four  months  thereafter.  It  is  probable 
that  Samuel  Williamson  did  not  feel  safe  in  his  contemplated 
fraud  in  executing  a  deed  to  his  son,  unless  he  could  first  induce 
William  Williamson  to  receive,  as  on  a  sale  represented  to  be 
consummated,  his  share  of  the  consideration  money  of  the  pre- 
tended sale,  in  full  of  his  share  of  the  estate.  I  cannot  consent, 
in  aid  of  a  fraud-doer,  to  construe  such  an  advance  of  money 
by  Samuel  Williamson  to  be  an  advance  of  money  by  him  as 
executor. 

I  think  it  more  consistent  with  every  consideration  of  policy, 
and  with  the  firmness  with  which  courts  of  equity  set  their  faces 
against  fraud,  more  especially  against  fraud  in  executors,  that 
Samuel  Williamson  shall  suffer  the  loss  of  the  money  which,  ia 
1792,  he  risked  in  such  a  venture,  than  that  William  William- 
son's estate  or  Asher  Williamson  should  now  be  obliged  to  pay 
32256,  with  interest  thereon  from  October,  1843. 

Twenty  years  elapsed  from  the  time  when  the  $350  is  said 
to  have  been  received  by  William  Williamson  from  Samuel 
Williamson  to  the  time  when  the  lands  of  the  estate  were  sold 
under  the  direction  of  a  master,  the  Court  of  Chancery  having 
so  ordered  in  view  of  the  fraud  which  had  been  committed  or 
attempted  by  Samuel  Williamson  ;  and  the  proceeds  of  the  sale 
were  deposited  in  the  Court  of  Chancery,  by  order  of  that  court, 
and  were  afterwards  ordered  to  be  paid  to  the  executor,  on  hin 
giving  bond,  with  surety,  for  the  performance  of  the  trust  repos- 
ed in  him  by  the  will  of  his  testator.  The  bond  was  given, 
with  Benjamin  Johnson,  the  present  complainant,  as  surety,  and 
the  proceed  of  the  sale,  after  certain  deductions,  were  thereupon 
paid  to  the  executor. 

It  seems  clear  to  me  that,  neither  in  law  nor  in  equity,  can 
any  allowance  be  made  to  the  executor  or  to  his  surety,  for 


622        COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

money  which  Samuel  Williamson,  twenty  years  before,  had 
fraudulently  and  of  his  own  money  put  into  the  hands  of  Wil- 
liam Williamson. 

2d.  The  decree  in  this  case  has  been  reached  by  allowing  the 
executor,  or  Johnson  as  his  surety,  interest  on  the  $350  fraudu- 
lently given  by  Samuel  Williamson,  in  April,  1792,  to  William 
Williamson  as  his  full  share  of  the  estate.  This,  also,  I  think 
erroneous.  It  would  be  oppressive  and  ruinous,  after  a  great 
lapse  of  years,  to  charge  a  man  with  interest  on  money  which 
he  received  as  his  own,  and  was,  therefore,  at  liberty  to  spend 
as  his  own;  and  there  is  no  principle  on  which  such  charge 
can  be  sustained.  If  my  first  objection  to  the  decree  could  be 
overcome,  the  most  that  equity  could  require  would  be  that 
what  William  Williamson  received  from  Samuel  Williamson 
should  be  deducted  from  the  amount  of  the  share  which,  after 
the  fraud  was  exposed  and  remedied,  was  found  to  be  actually 
due  from  the  executor  to  William  Williamson.  Samuel  Wil- 
liamson was  in  possession  of  the  lands  from  March,  1789,  to 
March,  1812.  All  that  can  be  required  is  that  the  $350  shall 
relieve  the  executor  from  the  rents  and  profits,  as  far  as  it 
will  go.  William  Williamson  never  agreed  to  receive  this 
money  in  a  way  to  charge  him  with  interest  for  it,  and  under 
the  circumstances  of  this  case,  no  implied  agreement  by  him  to 
pay  interest  for  it  can  be  raised. 

On  the  2d  April,  1792,  William  Williamson  received 
from  Samuel  Williamson....  $350  66 

Samuel  had  then  been  in  possession  of  the  lands 
three  years  and  twenty  days.  William  Williamson's 
fifth  of  the  rents  and  profits  for  that  time,  at  the  annual 
rent  fixed  by  master  Linn,  is 68  75 


Samuel's  actual  advance  was  only $281  91 

At  September,  1804,  William  Williamson's  fifth  of  the  rents 
and  profits  had  repaid  Samuel  this  $281.91. 

William  Williamson's  share  of  the  rents  and  profits,  fr6ra 
September,  1804,  to  March  llth,  1812,  when  the  executor  de- 
livered up  possession,  seven  years  and  six  months,  is  $168.75. 


JANUARY  TERM,  1846.  623 

Williamson  v.  Adm're  of  Johnson. 

The  lands  were  sold,  under  the  direction  of  a  mas- 
ter, for $7,923  31 

Deduct  the  allowance  made  for  improve- 
ments  $505  00 

Also  the  legacies,  and  the  interest  on  them 
for  twenty  years,  (which  interest,  if  chargea- 
ble upon  the  lands  at  all,  was  a  loss  inflicted 
on  thooe  interested  in  the  lands  by  the  fraud- 
ulent conduct  of  the  executor). „ 1,280  00 

Also  the  account  of  master  Linn,  for  su- 
perintending the  sale,  $173.80;  also  said 
master's  commissions  oil  the  money  paid  into 
court,  $69.24;  (both  which  last  items  of  ex- 
pense grew  out  of  the  fraud  of  the  executor,)  243  04 

Deduct  also  the  costs  of  the  complainants 
in  the  suit  in  which  the  sale  by  the  executor 
was  decreed  to  be  fraudulent,  (which  costs 
also  grew  out  of  the  fraudulent  conduct  of 
the  executor,  and  ought  properly  to  be 
charged  upon  him,  and  not  upon  the  fund,)  202  23 — 2,230  27 


Net  proceeds  of  the  sales,  after  all  deductions $5,693  04 


William  Williamson's  fifth  of  this  balance  is $1,138  61 

Interest  on  $1138.61,  from  March  llth,  1812,  to 
February  27th,  1822,  the  date  of  the  judgment  against 

Johnson,  9  years,  11£  mouths 793  67 

Wm.  Williamson's  share  of  the  rents,  &c.,  as  above,     168  75 

Due  the  William  Williamson  share,  at  the  time  the  

judgment  was  entered $2,101  03 

The  judgment  was  for  $2251.78,  only  $150  more  than  the 
result  of  the  above  calculation.  If  we  should  strike  out  the  al- 
lowance made  in  the  above  calculation  for  interest  on  the  lega- 
cies, and  the  expenses  of  the  sale  under  the  direction  of  a  mas- 
ter, and  the  costs  of  the  suit  in  which  the  fraudulent  sale  by  the 
executor  was  set  aside — all  which  are,  by  reason  of  the  fraud  of 
the  executor,  more  properly  chargeabje  upon  him  than  ujxm 
the  fund — the  amount  due  William  Williamson  at  the  time  of 
tiie  judgment,  will  be  found  to  be  nearly  $100  more  than  the 


624        COURT  OF  ERRORS  AND  APPEALS. 

AVilliamson  v.  Adm'rs  of  Johnson. 

amount  for  which  judgment  was  entered.  It  is  certainly  true 
that  all  these  extraordinary  charges  upon  the  fund  have  been 
induced  by  the  fraudulent  conduct  of  the  executor;  and  the  loss 
which  William  Williamson,  or  those  who  are  entitled  to  his 
share  sustain  thereby,  is  greater  than  the  loss  which  the  executor 
or  his  estate  would  sustain  by  being  obliged  to  pay  the  amount 
of  the  judgment  recovered  against  his  surety, 

Nothing  is  denied  to  the  executor  iu  the  foregoing  calculation 
but  interest  on  $281.91,  from  April,  1792,  to  September.  1804  ; 
a  very  trifling  injury,  for  he  was  receiving  $22.50  of  the  $281.91 
each  successive  year,  in  William  Williamson's  share  of  the  rents 
and  profits;  and  interest  is  properly  denied  to  him ;  he  cannot, 
on  any  principle,  be  allowed  interest  on  money  which  he  fraud- 
ulently induced  William  Williamson  to  receive  as  his  share  of 
the  estate,  when  his  share  was  many  times  greater.  Is  the  ex- 
ecutor to  be  permitted  to  charge  the  estate  with  all  the  expenses, 
and  the  interest  on  the  legacies,  and  the  costs  consequent  upon 
his  fraud  and  the  delay  induced  thereby  in  settling  the  estate, 
and  yet  ask  interest  on  the  sum  which  he  advanced  for  the  pur- 
pose of  effecting  his  fraudulent  design  ?  a  small  sum,  indeed, 
when  advanced,  but  which,  with  interest  from  1792  to  the  time 
of  the  decree  in  chancery,  compounded  as  in  master  Reading's 
report,  amounted  to  more  than  the  whole  amount  of  the  judg- 
ment recovered  for  the  share  of  William  Williamson. 

The  oppressive  result  of  an  affirmance  of  this  decree,  on  the 
one  hand,  and  the  very  slight  injury,  if  any  injury  at  all,  that 
can  be  complained  of  on  the  other  side,  if  matters  are  left  to 
stand  as  they  were  placed  by  the  judgment,  are  considerations 
which  constrain  me  to  refuse  my  assent  to  an  affirmance. 

I  cannot  imagine  that  any  member  of  the  court  could  con- 
sider the  executor  himself  entitled  to  any  relief.  The  conside- 
ration that  the  complainant  was  a  surety  for  the  executor,  has, 
I  have-no  doubt,  influenced  the  mind  of  the  court.  But,  if  the 
principal  has  no  legal  or  equitable  defence  or  right,  by  reason  of 
a  fraud  committed  or  attempted,  prior  to  the  time  when  the  bond 
with  surety  was  given,  can  the  surety  have  any  such  defence 
or  right?  If  the  principal  was  not  entitled  to  interest  on  the 
money  fraudulently  advanced  by  him,  long  before  the  bond  with 
burety  was  given,  can  the  surety  be  entitled  to  have  such  in- 


JANUARY  TERM,  1846.  G2-; 

Williamson  v.  Adm're  of  Johnson. 

terest  allowed  in  his  favor?  I  think  not.  An  executor's  giving 
security  after  a  past  fraud  cannot  cure  that  fraud  in  favor  either 
of  the  principal  or  of  the  surety.  And  surely  the  conduct  of 
this  surety  has  not  been  such  as  to  induce  us  to  resort  to  con- 
strained reasonings,  or  to  compound  with  sophisms,  in  his  favor. 
This  leads  mo, 

3dly.  To  another  objection  against  affirming  the  decree  to 
which,  as  it  seems  to  me,  no  satisfactory  answer  has  been  given. 
It  is  this.  While  the  suit  against  Johnson  was  pending,  and 
before  judgment  had  been  recovered  therein,  Johnson,  without 
consideration,  and  for  the  purpose  of  defeating  the  object  of  the 
suit,  conveyed  all  his  real  estate  to  his  son  and  daughter.  This 
divested  him  of  all  title  to  or  interest  in  the  lands,  as  much  so 
as  if  he  had  received  a  full  consideration  therefor.  He  could 
not,  by  any  proceeding  on  his  part,  recover  back  the  land,  or 
any  part  of  it;  nor,  if  a  judgment  was  recovered  against  him 
for  too  much,  in  the  suit  which  the  conveyance  was  intended  to 
defeat,  and  the  creditor  levy  upon  and 'sell  the  land,  on  the 
ground  that  the  fraudulent  conveyance  of  it  did  not  put  it  be- 
yond his  reach,  and  the  fraudulent  grantees  buy  the  land  at  the 
sheriff's  sale  and  pay  the  judgment,  can  the  fraudulent  grantor 
have  the  aid  of  a  court  of  equity  to  recover  back  the  excess  of 
the  judgment  over  the  true  amount  for  which  it  should  have 
been  entered.  To  allow  him  to  do  this  would  be  to  allow  him 
to  recover  a  part  of  the  proceeds  of  the  sale  of  the  land  which 
he  had  fraudulently  conveyed,  and  of  all  interest  in  which  he 
had  fraudulently  divested  himself,  when  he  would  not  be  allowed 
to  recover  back  the  land,  or  any  part  of  it. 

Johnson  can  derive  no  aid  from  the  fact  that  his  deed  to  his 
children  contained  a  warranty  against  encumbrances.  There 
was  no  encumbrance  at  the  time  the  conveyance  was  made — the 
judgment  had  not  then  been  recovered.  Nor  has  he  paid  the 
judgment,  unless  a  court  of  equity  can  be  willing  to  say  he 
ha.s  paid  the  judgment  because  he  fraudulently  conveyed  away 
his  property  for  the  purjwse  of  defeating  a  creditor  of  the  end 
and  object  of  his  suit.  I  confess  I  am  unable  to  yield  to  the 
course  of  reasoning  which  the  Chief  Justice  has  adopted  in  an- 
swer to  this  objection.  And  I  am  quite  as  unable  to  understand 
the  precise  meaning  of  the  Chief  Justice  in  saying  that  "  He 


626    COURT  OF  ERRORS  AND  APPEALS. 

Williamson  v.  Adm'rs  of  Johnson. 

(Johnson)  conveyed  the  premises  to  his  children  legally  subject 
to  the  judgment,  and  was,  therefore,  legally  liable  over  to 
them." 

I  do  not  see  that  this  surety  can  reasonably  ask  a  court  of 
equity  to  depart  from  settled  and  most  salutary  principles  to  re- 
lieve him  from  the  effects  of  his  own  fraud.  The  claim  of  the 
complainant,  in  the  most  liberal  view  in  which  it  can  be  pre- 
sented, may  be  stated  thus  :  A  surety  for  an  executor,  believing 
that  the  executor,  who  was  dead,  had  in  his  lifetime  paid  and 
taken  a  receipt  for  a  portion  of  a  claim  existing  against  him, 
but  being  unable  to  find  the  receipt,  makes  no  defence  to  a  suit 
against  him,  the  surety,  but,  for  the  purpose  of  defeating  the 
creditor,  before  judgment  is  entered,  fraudulently  conveys  all 
his  property  to  his  children  ;  judgment  is  afterwards  entered, 
and  execution  is  issued  thereon,  and  the  sum  recovered  is  raised 
by  a  sale  of  the  lands  conveyed  to  the  children  ;  the  receipt  is 
afterwards  found,  and  it  thus  appears  that  the  judgment  was  for 
too  much.  Will  a  court  of  equity  decree  to  the  fraudulent 
grantor  the  amount  of  the  receipt  ?  Suppose  that  after  the  frau- 
dulent conveyance  the  receipt  is  discovered  and  the  judgment  is 
thereby  prevented ;  would  a  court  of  equity  decree  the  recon- 
veyance of  the  lauds  to  the  fraudulent  grantor?  In  my  judg- 
ment, an  affirmative  answer  to  either  of  these  questions  cannot 
be  reached  by  sound  reasoning. 

Again.  The  decree  is  against  Asher  Williamson,  and  the 
amount  of  it  is  ordered  to  be  raised  out  of  the  goods  and  chat- 
tels, lands  and  tenements,  of  Asher  Williamson.  The  judgment 
was  recovered  by  him,  and  the  amount  thereof  was  received  by 
him  as  the  administrator,  &c.,  of  William  Williamson. 

There  was  an  allegation  in  the  first  bill  that  Asher  William- 
son, before  he  obtained  letters  of  administration  of  the  personal 
estate  of  William  Williamson  the  younger,  deceased,  purchased 
from  the  heirs  of  the  said  William,  or  some  of  them,  their  claim 
against  the  executor,  Samuel.  If  it  had  been  shown  that  Asher 
had  purchased  the  rights  of  the  heirs  of  William  Williamson, 
the  decree,  if  right  in  other  respects,  might  have  been  against 
Asher  personally;  but  no  proof  of  such  purchase  appeared, and 
the  second  bill  contained  no  such  allegation. 

I  think  the  decree  should  be  reversed. 


COURT  OF  ERRORS  AND  APPEALS. 

APRIL  TERM,  1846. 


[The  term  of  JOSEPH  PORTER,  who,  under  the  arrangement 
of  the  terms  of  the  six  appointed  judges  of  this  court  made 
pursuant  to  the  constitution,  took  his  seat  for  one  year,  expired 
February  5th,  1846,  and  he  was  re-appointed  for  six  years  from 
that  day.] 


MEHETABEL  ANTHONY,   APPELLANT,  v.  ELIZABETH 
ANTHONY,  RESPONDENT. 

No  appeal  lies  from  the  decree  of  the  Ordinary  or  surrogate-general  in  the 
matter  of  the  assignment  of  dower. 


This  was  an  appeal  from  the  final  sentence  or  decree  of  the 
Ordinary  or  surrogate-general,  approving  and  confirming  the 
report  of  commissioners  assigning  dower  to  Elizabeth  Anthony, 
widow,  &c. 

P.  D.  Vroom,  in  pursuance  of  a  rule  heretofore  taken  to 
show  cause,  &c.,  now  moved  that  the  appeal  be  dismissed  for 
want  of  jurisdiction  in  this  court. 

Mr.  Vroom  referred  to  the  9th  section  of  the  old  constitution, 
and  said  that  it  had  always  been  held  that  no  appeal  lay  to  the 
governor  and  council  from  the  Court  of  Chancery,  or  from  the 
Prerogative  Court,  until  by  an  act  of  the  legislature  an  appeal 

627 


628         COURT  OF  ERRORS  AND  APPEALS. 

Chetwood  v.  Brittan. 

was  given  from  the  Court  of  Chancery,  but  that  to  this  day  no 
appeal  from  the  Ordinary  had  ever  been  brought.  He  cited 
4  Grif.  Law  Reg.  1178,  1179,  1185. 

He  adverted  to  the  supplement  passed  February  24th,  1820, 
to  the  "  act  relative  to  dower,"  the  7th  section  of  which  supple- 
ment gives  an  appeal  to  this  court  from  any  sentence  or  decree 
of  the  surrogate-general  made  under  the  authority  of  the  said 
supplement,  and  insisted  that  the  said  7th  section  was  uncon- 
stitutional. 

He  adverted  to  article  6th,  section  1st,  of  the  new  constitu- 
tion. The  judicial  power  shall  be  vested  in  "  a  Court  of  Errors 
and  Appeals  in  the  last  resort  in  all  causes  as  heretofore,"  and 
admitted  that  this  increases  the  difficulty  and  importance  of  the 
question. 

The  appeal  was  dismissed  by  the  whole  court,  except  the  presi- 
dent, who,  being  Chancellor  and  surrogate-general,  declined 
voting.  See  note. 

NOTE. — Is  there  any  reason  why  the  legislature  cannot  give  to  the  Ordinary 
or  surrogate-general  jurisdiction  over  a  new  subject  matter,  and  give  an  ap- 
peal from  his  decrees  in  reference  thereto? 

CITED  in  Harris  v.  Vanderveer,  6  C.  E.  Gr.  438,  443,  444,  454. 


WILLIAM  CHETWOOD,  APPELLANT,  AND  STEPHEN  P.  BRIT- 
TAN,  RESPONDENT. 

It  is  not  competent  to  show  by  parol  that  at  the  time  of  executing  a  bond 
the  obligee  agreed  that  the  obligor  should  not  be  personally  liable,  but  that  the 
obligee  would  look  for  payment  to  the  mortgage  given  to  secure  the  bond. 


Tim  case,  and  the  decision  of  the  Chancellor  thereupon,  is 
reported  in  3  Green's  Ch.  Rep.  334. 

Wm.  Halsted  opened  the  argument  in  this  court  for  the  ap- 
pellant. In  addition  to  the  cases  cited  for  the  complainant  in 
the  court  below,  he  cited  1  Term  Rep.  701  ;  3  Green's  Chan. 
155;  15  Vesey  85,  90;  2  Dall.  70;  Coxe's  Chan.  402;  14 


APRIL  TERM,  1846.  629 


Ex'rs  of  Olden  v.  White. 


Wend.  63;  8  Ibid  641;  9  Cowcn  227;  2  Halst.  Rep.  1,  13; 
Phil.  Evid.,  by  Cowen,  1432 ;  4  John.  Chan.  167;  9  Wheat. 
495;  2  Eden's  Rep.  110;  11  JFend.  536;  10  Ibid.  310,  313; 
13  Ptc&.  Rep.  69,  75;  1  #ra?n£  Evid.  370,  and  note;  4  John. 
Chan.  144. 

At  the  close  of  the  opening  argument,  the  court,  upon  the 
suggestion  of  Judge  A.  Robertson,  had  a  conference,  and  unani- 
mously agreed  that  it  was  not  necessary  to  hear  the  counsel  for 
the  respondent,  hut  said  they  would  hear  Mr.  Vroom,  the  asso- 
ciate counsel  for  the  appellant. 

P.  D.  Vroom  then  closed  the  argument  for  the  appellant. 
He  cited,  further,  1  Hill.606;  1  Cowen's  Rep.  409;  1  Ves.  & 
Beam  375. 

Decree  below  affirmed,  per  tot.  cur.,  all  being  present  except 
Chancellor  Halsted,  who  had  been  of  counsel  with  the  com- 
plainant below,  and  Justice  Randolph,  who  was  absent,  from 
indisposition. 


THE  EXECUTORS  OF  SAMUEL  S.  OLDEN  AND  OTHERS,  APPEL- 
LANTS, AND  ANN  P.  WHITE  AND  OTHERS,  RESPONDENTS. 

The  testator,  by  his  will,  gives  to  his  aunt,  Ann  P.  White,  $10,000,  to  be 
paid  to  her  as  soou  as  practicable  after  his  decease,  or,  with  interest  from  that 
time.  He  then  gives  several  oilier  money  legacies.  He  then  makes  specific 
bequests  of  furniture  and  other  articles  of  personal  property.  He  then  says 
that  he  wishes  his  bank  stock  to  make  a  part  of  his  dear  aunt's  legacy,  as  it 
will  give  her  less  trouble  in  collecting.  The  will  then  provides  thus :  "  Item* 
— After  all  my  just  debts  are  paid,  and  the  expenses  of  fulfilling  this  my  last 
will  and  testament,  I  give  and  bequeath  all  the  remainder  of  my  property, 
both  real  and  personal,  to  be  equally  divided  among  my  four  cousins  (naming 
them.)  Item. — I  wish  that  the  house  I  have  lately  purchased  of  C.  M.  Camp- 
bell, valued  at  $4000,  to  be  part  of  my  dear  aunt's  legacv,  and  that,  in  the 
division  of  her  portion,  my  Trenton  bank  be  calculated  at  $40  per  share,  and 
my  Easlon  bank  at  $30  per  share."  And,  by  a  codicil  to  his  said  will,  he 
gave  to  his  aunt,  Ann  P.  White,  in  fee  simple,  a  lot  of  woodland  (describing 
it),  containing  fifteen  acres,  and  all  the  plate  in  his  house,  and  some  other 
articles  of  personal  property;  and  also  gave  by  the  codLcil,  three  other  money 
legacies,  one  of  $200,  one  of  $50,  and  one  of  $75 — 

Held,  that  the  lands  devised  in  the  residuary  clause  of  the  will  were  not 


630    COURT  OF  ERRORS  AND  APPEALS. 

Exr's  of  Olden  v.  White. 

chargeable,  in  aid  of  the  personal  estate,  with  the  payment  of  the  legacies, 
but  that  the  personal  estate  being  insufficient  to  pay  the  legacies,  they  must 
abate. 

This  case  is  reported  in  3  Green's  Chan.  343.  The  cause 
was  argued  in  this  court  by 

W.  Hoisted  and  P.  D.  Vroom,  for  the  appellants,  and 
R.  8.  Field  and  W.  L.  Dayton,  for  the  respondents. 

Cases  cited  by  the  appellants,  in  addition  to  the  cases  cited  by 
the  counsel  for  the  defendants  below — 1  P.  Wrns.  294 ;  10  GUI 
&  John.  143;  6  Conn.  Rep.  1 ;  Story's  Com.  on  Const,  of  U.  S., 
§  207;  1  Story's  Eq.,  §  565 ;  1  P.  Wms.  729;  8  Cond.  Eng. 
Ch.  Rep.  167;  1  Ves.,  Sr.,  Ill;  Toll,  on  Exec.  301;  1  Roper 
on  Leg.  149;  2  Smith's  Chan.  283;  1  King's  Rep.  273;  1 
Coxe's  Chan.  180;  2  Ves.,  Sr.,  52;  Seaton's  Forms  74;  1  Dess. 
500,  513;  Pow.  on  Dev.  667;  2  Dickens  507;  1  Sch.  '&  Lef. 
238. 

Cases  cited  by  the  counsel  for  the  respondents — 2  Vern.  228  ; 
1  Ves.,  Sr.,  499 ;  4  Mad.  Chan.  102 ;  I  Ves.,  Jr.,  436,  444 ; 
Prec.  in  Ch.  430,  397;  2  Dickens  507;  1  Roper  on  Leg.  451, 
643 ;  1  Ves.,  Sr.,  495 ;  4  Vin.  Ab.  460,  pi  180 ;  3  Atk.  352 ; 
4  Russ.  376;  3  Cond.  Eng.  Ch.  Rep.  714;  11  Ibid.  227;  14 
Ibid.  696,  708 ;  1  Ibid.  604 ;  3  Sinney  525 ;  6  Ibid.  395 ;  3 
Ves.,  Jr.,  738 ;  9  Law  Lib.  108;  1  Story's  Eq.,  §  569;  2  Ibid. 
§  1144;  Jeremy's  Eq.  162,  539;  Ambl  128;  IP.  Wms.  403; 
8  Ves.  397 ;  3  Paige  405 ;  Seaton's  Forms  75. 

Chief  Justice  HORNBLOWER  gave  an  opinion  in  favor  of 
affirming  the  decree  of  the  Chancellor. 

Justice  CARPENTER,  and  Judges  PORTER  and  SPENCER  con- 
curred. 

Justice  NEVITJS  gave  an  opinion  in  favor  of  reversing  the 
decree  of  the  Chancellor. 

Justice  WHITEHEAD,  Judges  ROBERTSON,  SPEER,  and 
SCHENCK,  and  the  President,  concurred  with  Judge  NEVIUS. 

Decree  below  reversed. 

CITED  in  D«y  v.  Z>ey'«  Ad.,  4  C.  E.  Or.  137. 


COURT  OF  ERRORS  AND  APPEALS. 

JANUARY  TERM,  1847. 


[The  official  term  of  JOSEPH  C.  HORNBLOWER,  Chief  Justice, 
expired  October  31st,  1846.  HENRY  "W.  GREEN,  Esquire, 
succeeded  him  as  Chief  Justice. 

JOSHUA  BRICK  had  resigned  previous  to  this  term,  and  THOMAS 
SINNJCKSON  had  been  appointed  in  his  place.] 


JEREMIAH  W.  BLYDENBURGH  AND  OTHERS,  APPELLANTS, 
AND  HENRY  COTHEAL  AND  DAVID  COTHEAL,  RESPOND- 
ENTS. 

1.  A,  living  in  New  York,  sold  to  B,  also  living  in  New  York,  a  tract  of 
land  in  New  Jersey,  and  took  B's  bond  for  the  consideration  money,  with 
seven  per  cent,  interest,  and  his  mortgage  on  the  lands  conveyed,  to  secure  the 
payment  of  the  bond.     The  mortgage  is  not  usurious. 

2.  The  exchange  of  the  papers  in  New  Jersey  at  the  proper  record  office 
will  not  make  the  mortgage  usurious  ;  they  having  been  executed  and  acknow- 
ledged in  New  York,  and  a  sufficient  reason  for  not  exchanging  them  there 
being  shown. 

This  case  is  reported  ante  p.  17.     It  was  argued  in  ths  court 
by 

Jer.  W.  Blyderiburgh,  for  the  appellants,  and  by 
W.  H.  Leupp,  for  the  respondents. 

The  decree  of  the  Chancellor  was  unanimously  affirmed. 

631 


632    COURT  OF  ERRORS  AND  APPEALS. 


Ross  v.  Haines. 


SAMUEL   ROSS,  APPELLANT,   AND  ABRAHAM   HAINES,   RE- 

SPONDENT. 

1.  If  a  mortgagor,  subsequently  to  the  mortgage,  sells  and  conveys  a  part 
of  the  mortgaged  premises,  an  equity  arises  in  favor  of  the  purchaser  to  have 
the  part  which  remains  in  the  mortgagor  first  sold  for  or  towards  the  payment 
of  the  mortgage. 

2.  But  if  the  purchaser  agrees  with  the  mortgagor  that  the  part  he  buys 
shall  be  subject  to  the  mortgage,  and  that  the  amount  due  on  the  mortgage 
shall  be  a  part  of  the  consideration  he  is  to  pay,  equity  will  not  interpose  to 
subject  the  part  of  the  mortgaged  premises  remaining  in  the  mortgagor  to  be 
first  sold. 

3.  And  a  subsequent  grantee  of  such  purchaser  from  the  mortgagor,  with 
notice,  has  no  better  equity  against  the  mortgagor. 


This  case  is  reported  ante  p.  186,  under  the  title  of  Joseph 
Engle  v.  Abraham  Haines  and  wife,  Samuel  Ross,  and  others. 
It  was  argued  in  this  court  by 

i 
W.  N.  Jeffers,  for  the  appellant,  and  by 

J.  C.  Ten  Eyck,  for  the  respondents. 

> 

The  decree  of  the  Chancellor  was  unanimously  affirmed. 


JANUARY  TERM,  1847.  633 


Vau  Hook  v.  Somerville  Manuf.  Co. 


WILLIAM  VAN  HOOK,  APPELLANT,  v.  THE  SOMERVILLE 
MANUFACTURING  COMPANY,  LUTHER  LOOMIS  AND  SAM- 
UEL P.  LYMAN,  RESPONDENTS. 

[The  reporter  is  indebted  to  Justice  WHITEHEAD  for  the  fol- 
lowing syllabus  and  report  of  this  case.]] 

1.  On  bond  and  mortgage  by  corporation,  bill  to  foreclose  and  decree  pro 
confesso  against  the  corporation  and  some  of  the  defendants  ;  an  answer  by  the 
other  defendants  admitting  the  execution  in  the  manner  set  forth  in  the  bill 
of  complaint,  precludes  all  inquiry  into  the  fact  and  manner  of  execution. 

2.  The  company  executed  a  bond  and  mortgage  to  S.,  its  financial  agent,  for 
$9600,  for  the  purpose  (as  alleged  in  the  answer)  of  raising  funds  by  the  sale 
of  these  securities  for  the  use  of  the  company.     S.  sold  and  assigned  them  to 
the  complainant  and  appropriated  the  proceeds  of  the  sale  to  his  own  use. 
Held,  that,  admitting  the  fraud  charged,  the  company  was  still  liable  for  the 
payment  of  the  bond  and  mortgage  in  the  hands  of  bonafide  purchasers  with- 
out notice  of  the  fraud.     The  company  having  held  out  S.  as  the  owner  of  the 
bond  and  mortgage,  must,  in  euch  case,  abide  the  consequences  of  the  fraudu- 
lent conduct  of  its  own  agent. 

3.  Upon  an  examination  of  the  testimony  of  this  case — held,  (contrary  upon 
this  point  to  the  view  taken  by  the  Chancellor,)  that  there  was  no  satisfactory 
evidence  of  any  knowledge  by  the  complainant  of  the  alleged  fraud  of  the 
agent ;  that  the  complainant  stood  in  the  position  of  a  bonajide  purchaser  and 
assignee  of  the  bond  and  mortgage,  and  held  a  valid  and  subsisting  lien  on 
the  mortgaged  premises. 

4.  The  defendants,  Loomis  and  Lyman,  took  a  conveyance  from  the  cor- 
poration, of  the  mortgaged  premises,  absolute  on  its  face,  but  subject  to  a  sepa- 
rate agreement  signed  by  them  and  others,  that  they  would  hold  said  premises 
for  the  benefit  of  themselves  and  such  of  the  parties  to  said  agreement  as 
should  pay,  pro  raid,  for  the  purchase,  according  to  their  respective  interests. 
No  trust  appearing  on  the  face  of  the  conveyance  to  Loomis  and  Lyman,  and 
it  not  appearing  in  any  way  that  the  others  had  contributed  to  the  purchase 
and  thereby  become  interested — held,  that  the  latter  need  not  be  made  parties 
to  the  suit. 

The  appellant,  on  the  30th  June,  1843,  filed  his  bill  in  the 
court  below,  to  foreclose  a  bond  and  mortgage  given  by  the  said 
company  to  Jared  N.  Stebbins,  dated  10th  January,  1842,  to 
secure  the  payment  of  $9600  on  the  5th  January,  1845,  with 
interest  annually.  The  bill  sets  forth  the  execution  of  the  bond 
and  mortgage,  the  acknowledgment  and  registry  of  the  latter, 

VOL.  i.  2B 


634        COURT  OF  ERRORS  AND  APPEALS. 


Van  Hook  v.  Somerville  Manuf.  Co. 


and  an  assignment  by  Stebbins  to  the  complainant,  on  the  25ih 
day  of  July,  1842,  and  that  no  part  of  the  principal  or  interest 
had  been  paid.  The  bill  states  a  judgment  recovered  October 
4th,  1842,  in  Somerset  Circuit  Court,  by  Joshua  Doughty  against 
the  company,  for  $2352  of  debt,  besides  costs ;  also  by  the  State 
Bank  at  Elizabeth,  in  the  same  court,  for  $1352.52  debt,  be- 
sides costs;  which  are  claimed  to  be  liens  on  the  mortgaged 
premises.  It  also  states  that  on  the  16th  October,  1842,  the 
company  conveyed  the  mortgaged  premises  to  Loomis  and  Ly- 
man,  two  of  the  defendants.  That  Henry  Ibbotson,  another  de- 
fendant, on  the  22d  October,  1842,  recovered  a  judgment  in  said 
Circuit  Court  against  the  company  for  $1190,  besides  costs,  also 
claimed  to  be  a  lien  on  said  premises.  That  Ibbotson  had  filed 
his  bill  in  chancery  against  the  company  and  Loomis  and  Ly- 
man  to  set  aside  the  conveyance  to  the  latter,  and  to  enforce  the 
payment  of  his  judgment  against  the  said  mortgaged  premises. 
The  complainant,  Van  Hook,  insists  upon  his  preference,  and 
the  bill  then  prays  that  the  company  may  be  decreed  to  pay  the 
amount  due  upon  the  mortgage,  and  that  in  default  thereof,  the 
mortgaged  premises  be  sold  for  that  purpose,  &c. 

A  decree  pro  confesso  was  taken  in  October,  1843,  against  the 
company,  Doughty,  the  Bank  at  Elizabeth  and  Ibbotson. 

Loomis  and  Lyman  filed  their  answer  to  the  bill.  They  ad- 
mitted the  execution  of  the  bond  and  mortgage  to  Stebbius,  but 
'denied  their  validity.  They  denied  any  indebtedness  of  the 
company  to  Stebbins,  and  proceeded  in  their  answer  to  set  out 
the  circumstances  under  which,  as  they  alleged,  these  instru- 
ments were  executed.  That  they  were  executed  in  order  to  en- 
able Stebbins  to  raise  money  by  sale  of  these  securities,  and 
thereby  evade  the  law  restraining  the  rate  of  interest.  The  an- 
swer sets  out  the  indebtedness  of  the  company,  and  the  necessi- 
ties which  constrained  it  to  resort  to  this  mode  of  raising  money. 
That  a  false  certificate  was  given  by  the  president  of  the  com- 
pany to  Stebbins,  for  the  purpose  of  enabling  the  latter  to  de- 
ceive persons  into  the  belief  that  the  amount  for  which  the  se- 
curities purported  to  have  been  given  was  really  due,  contrary, 
as  the  answer  alleged,  to  the  fact.  That  Stebbins  failed  to 
make  any  contract  for  the  loan  of  money ;  but  afterwards,  and 
about  the  llth  July,  1842,  agreed  to  transfer  the  bond  and 


JANUARY  TERM,  1847.  635 

Van  Hook  v.  Somerville  Manuf.  Co. 

mortgage  on  his  own  account,  to  the  complainant,  in  exchange 
for  certain  lots  of  leasehold  property  in  the  city  of  New  York, 
which  agreement,  they  averred,  was  without  authority  and  with- 
out consideration,  fraudulent,  and  intended  to  injure  the  defend- 
ants. 

The  answer  further  states  that,  on  the  25th  July,  1842,  Steb- 
bins  fraudulently  assigned  the  said  bond  and  mortgage,  in  pur- 
suance of  said  fraudulent  agreement,  and,  on  the  1st  August, 
1842,  procured  the  assignment  to  be  recorded  in  the  clerk's  office 
of  Somerset,  as  a  cover  to  the  said  fraud,  but  that,  as  the  defend- 
ants were  informed  and  believed,  the  bond  and  mortgage  were 
not  delivered  to  the  complainant  until  the  29th  September,  1842. 
That  a  conveyance  was  made  to  a  son  of  Stebbins,  by  the  com- 
plainant, in  pursuance  of  said  fraudulent  agreement,  of  the  lots 
proposed  to  be  given  in  exchange  for  the  bond  and  mortgage, 
by  an  instrument  in  writing,  dated  llth  July,  1842,  and  record- 
ed in  New  York,  for  the  nominal  consideration  of  $10,000,  and 
that  the  said  conveyance  to  the  son  was  to  cover  the  fraud  of 
Stebbins  and  the  complainant.  That  all  this  was  done  with 
full  knowledge  and  notice,  by  the  complainant,  of  the  circum- 
stances attending  the  execution  of  the  bond  and  mortgage,  and 
of  the  purposes  with  which  done.  The  answer  further  alleges 
that  the  complainant  employed  an  agent  to  procure  the  post 
fncto  passage  of  resolutions  by  the  managers  of  the  company, 
for  the  purpose  of  covering  the  said  fraud,  and  charges  that  the 
transaction  is  fraudulent  and  void. 

The  answer  proceeds  to  set  out,  at  length,  the  interest  of  the 
defendants  Loomis  and  Lyman,  in  the  mortgaged  premises,  and, 
to  assert  the  validity  of  the  conveyance  to  them,  of  the  same,  by 
t'he  company,  denies  all  unlawful  combination,  aud  prays  that 
the  bill  may  be  dismissed. 

The  complainant  filed  the  usual  replication,  and  the  cause 
was  thus  put  at  issue. 

The  testimony,  which  was  voluminous,  is  stated  at  large,  in 
the  report  of  the  case  below,  and  it  is  unnecessary  to  be  here 
repeated.  The  exhibits  set  out  in  the  answer,  or  shown  in  evi- 
dence below,  also  appear  in  the  same  report.  See  1  Halsted't 
Chan.  Rep.  137-186.  The  Chancellor  sustained  the  defence, 
and  dismissed  the  bill. 


636          COURT  OF  ERRORS  AND  APPEALS. 

Van  Hook  v.  Somerville  Manuf.  Co. 

The  cause  was  argued  on  the  appeal,  by  P.  D.  Vroom  and 
A.  Whitehead,  for  the  appellant,  and  by 

B.  Williamson  and  S.  P.  Lyman  (of  New  York),  for  the  re- 
spondents. 

The  opinion  of  the  court  was  delivered  by  WHITEHEAD,  J. 

The  first  question  for  the  consideration  of  the  court,  is  whether 
the  mortgage  set  forth  in  the  bill  of  complaint,  is  the  deed  of 
the  company.  So  far  as  regards  these  parties,  and  under  the 
pleadings  in  the  cause,  this  cannot  be  an  open  question.  The 
answer  of  the  defendants  distinctly  admits  that  the  company 
executed  the  bond  and  mortgage  in  the  manner  set  forth  in  the 
bill  of  complaint.  This  admission  precludes  all  inquiry  into 
the  fact  or  the  manner  of  the  execution.  It  was  not  a  matter 
in  issue  in  the  cause,  and  the  defendants  were  not  at  liberty  to 
controvert  it.  If  this  be  the  law  of  the  case,  then  it  is  entirely 
unnecessary  and  irrelevant  to  inquire  whether  the  several  meet- 
ings of  the  managers  were  regular  and  in  pursuance  of  their 
charter,  or  whether  any  of  the  managers  who  took  part  in  the 
proceedings  of  the  meetings  were  competent  to  act. 

Assuming,  then,  that  the  bond  and  mortgage  were  regularly 
executed,  the  next  question  raised  by  the  counsel,  is  whether 
they  were  given  for  a  valuable  consideration.  But,  upon  this 
question,  it  is  not  necessary'for  the  court  to  express  an  opinion. 
Admitting  that  there  was  no  consideration,  and  that  they  were 
given  for  the  purposes  alleged  by  these  defendants,  how  does 
the  case  then  stand  upon  the  evidence?  Stebbins,  the  mortgagee, 
was,  and  had  been,  for  two  years  or  more  previous  to  the  5th  day 
of  January,  1842,  when  it  was  resolved  by  the  board  to  give 
the  mortgage,  the  acknowledged  financial  agent  of  the  com- 
pany, at  a  salary  of  $3000.  Under  these  circumstances,  it  is  fair 
to  presume  that  he  had  the  entire  confidence  of  the  managers 
and  stockholders.  The  company  were,  at  this  time,  in  need  of 
money  to  discharge  claims  pressing  for  payment,  and  to  put  the 
works  in  operation.  He  was  authorized  by  the  board,  as  its 
agent,  to  negotiate  the  mortgage.  It  was  placed  in  his  hands 
for  the  purpose.  The  board  of  managers  held  him  out  to  the 
world  as  the  bona  fide  holder  of  it,  with  all  the  presumptions 


JANUARY    TERM,   1847.  637 

Van  Hook  v.  Somerville  Manuf.  Co. 

the  law  would  raise,  from  the  possession  of  it  by  him,  that  it 
was  given  for  a  valuable  consideration.  If,  under  these  circum- 
stances, and  clothed  with  this  authority,  he  negotiated  the  mort- 
gage as  his  own  property,  given  for  a  valuable  consideration,  he 
did  no  more  than  he  was  authorized  to  do  by  the  managers. 
He  was  simply  carrying  out  their  intentions,  as  expressed  in 
their  recorded  resolutions,  copies  of  which  were  furnished  him 
for  the  purpose.  In  this  view  of  the  case,  even  if  he  did  commit 
a  fraud  upon  the  company,  as  is  insisted  by  the  defendants,  the 
company  is  nevertheless  bound  for  the  payment  of  it,  unless  the 
complainant  took  the  assignment  with  notice  of  the  fraud.  The 
company  must  abide  the  consequences  of  the  fraudulent  conduct 
of  its  own  agent. 

It  is  said,  however,  that  Mr.  Van  Hook  had  notice  of  the 
fraud  by  Stebbins,  and  that,  therefore,  the  mortgage  is  void  in 
his  hands.  No  satisfactory  evidence  is  to  be  found  in  the  case 
of  a  combination  between  Stebbins  and  Van  Hook,  or  that  the 
latter  regarded  the  mortgage  otherwise  than  as  a  fair  and  bona 
fide  transaction  between  the  company  and  Stebbins.  The  con- 
duct of  the  complainant  relied  upon  as  evidence  of  fraud,  or  as 
evidence  of  his  knowledge  of  the  fraudulent  intentions  of  Steb- 
bins, is  his  employment  of  counsel  to  look  into  the  circum- 
stances under  which  the  mortgage  was  given ;  and  the  conduct 
of  the  counsel  in  asking  an  additional  resolution  to  be  passed  by 
the  board,  that  the  bond  and  mortgage  were  a  legal  and  subsist- 
ing liability  of  the  company;  and  the  further  certificate  of  the 
president,  Mr.  Gaston,  that  the  same  were  given  by  the  order  of 
the  board  of  managers,  and  that  the  amount  thereof  was  due 
Mr.  Stebbins.  Nothing  is  seen  in  all  this  furnishing  the  slight- 
est evidence  of  fraud.  It  is  but  the  prudent  action  of  a  careful 
man.  Considering  the  amount  of  the  mortgage,  and  the  fact 
that  the  complainant  resided  out  of  the  state,  there  was  an  appa- 
rent necessity  that  he  should  employ  counsel  in  this  state  to 
examine  the  company's  title  to  the  mortgaged  premises,  and  to 
ascertain  whether  the  board  had  complied  with  all  the  requisi- 
tions of  the  law  to  constitute  the  mortgage  a  valid  security. 
The  charge  of  fraud  might  much  more  properly  have  been 
made  against  the  complainant,  had  he  purchased  the  mortgage 
for  this  large  amount  without  any  examination  by  counsel.  Nor 


638          COURT  OF  ERRORS  AND  APPEALS. 

Van  Hook  v.  Somerville  Manu-f.  Co. 

can  fraud  be  inferred  from  the  action  of  the  complainant's  coun- 
sel in  the  premises.  They  did  no  more  than  any  prudent, 
faithful  counsel  would  have  done  under  like  circumstances. 

The  testimony  of  Mr.  Gaston,  detailing  what  took  place  in 
his  interview  with  the  complainant  at  Somerville,  is  relied  upon 
as  evidence  of  notice  on  the  part  of  the  complainant  of  the  object 
for  which  the  mortgage  was  given.  In  relation  to  this  testimony, 
it  should  be  remarked  that  the  object  of  Mr.  Van  Hook's  visit 
to  Soraerville  was  not  to  examine  the  title  to  the  mortgaged 
premises,  nor  the  circumstances  under  which  the  mortgage  was 
given,  but  simply  to  satisfy  himself  of  the  value  of  the  premises. 
This  is  proved  by  the  other  testimony  in  the  cause,  and  Mr. 
Gaston  himself  says  that  he  (Mr.  Van  Hook)  came  out  to  look  at 
the  property.  He  says  further,  that  Mr.  Van  Hook  made  several 
inquiries  respecting  the  value  of  the  premises.  This  was  the  whole 
object  of  his  visit,  and  was  necessarily  the  principal  subject  of 
conversation.  All  the  other  matters  connected  with  the  affairs 
of  the  company,  about  which  Mr.  Gaston  says  they  conversed, 
were  matters  in  which  Mr.  Van  Hook  had  but  little  interest. 
It  would  be  dangerous  to  fix  a  party  with  notice  of  fraud  by  a 
casual  conversation  upon  matters  in  which  the  party  sought  to 
be  charged  had  but  little  or  no  interest. 

Again.  It  is  said  (in  the  defendant's  own  language)  that  no 
decree  favorable  to  the  complainant  can  be  made  until  all  the 
persons  interested  are  made  parties  to  the  suit.  The  persons 
referred  to  are  the  parties  of  the  second  part  to  the  memoran- 
dum of  an  agreement  dated  in  October,  1842.  The  allegation 
is,  that  they  are  interested  under  and  in  pursuance  of  that 
agreement,  and  should  have  been  made  parties  with  these  de- 
fendants. The  question  presented  is,  does  the  simple  execution 
of  the  agreement  by  these  parties,  without  any  other  or  further 
act  done  by  them,  give  them  such  an  interest  as  to  make  it 
necessary  to  bring  them  into  court  as  defendants?  By  the  terms 
of  the  agreement  it  was  contemplated  that  something  further 
was  to  be  done  by  the  parties,  in  the  event  of  a  purchase  by 
Loornis  and  Lyman,  before  they  could  be  interested  in  the  pur- 
chase. They  might,  or  they  might  not  become  interested.  They 
bad  the  option  to  protect  their  respective  equitable  interest  by 


JANUARY  TERM,  1847.  639 


Garr  v.  Hill. 


making  pro  raid  advances.  If  they  refused  or  neglected  to 
make  these  advances,  they  certainly  had  no  interest  in  the  pur- 
chase afterwards  made.  The  agreement  in  that  case,  as  to  them, 
was  a  dead  letter.  But  if  they  did  avail  themselves  of  the  option 
made  them  by  the  defendants,  (Loom is  and  Lyman,)  so  as  to  en- 
title themselves  to  share  in  the  benefits  contemplated  by  the  pur- 
chase, then  the  fact  that  they  did  contribute  and  thereby  became 
interested,  ought  to  appear  either  in  the  answer  or  in  the  proofs. 
Now  this  fact  nowhere  appears  in  the  cause.  In  the  absence  of 
any  allegation  or  proof  of  the  kind,  they  cannot  be  regarded  as 
parties  in  interest.  The  simple  fact  that  they  signed  the  agree- 
ment referred  to,  does  not  of  itself  invest  them  with  such  an  in- 
terest as  required  the  complainant  to  bring  them  before  the  court 
as  parties  defendants. 

Again,  The  deed  from  the  company  to  these  defendants  is 
absolute  upon  its  face.  There  is  nothing  showing  a  trust. 

We  are  of  opinion  that  the  mortgage  is  not  fraudulent,  but  a 
valid  lien  and  encumbrance  upon  the  premises  therein  mentioned 
and  described;  and  that  the  complainant  is  entitled  to  the  relief 
sought  and  prayed  for  by  him  in  his  bill  of  complaint. 


ANDREW  S.  GAER,  APPELLANT,  AND  SELAH  HILL,  RE- 
SPONDENT. 

On  bill  filed,  the  complainant  had  obtained  an  injunction  restraining  the 
defendant  from  aliening  or  encumbering  certain  real  estate  which  was  in  con- 
troversy between  the  complainant  and  defendant,  and  from  collecting  or  re- 
ceiving the  rents;  and  had  also  obtained  an  order  appointing  a  receiver  of  the 
rents  and  profits.  Afterwards,  by  an  order  dated  February  13lh,  1844,  the 
Chancellor  made  an  order  authorizing  the  receiver,  instead  of  collecting  the 
rents  himself,  to  permit  the  defendant  to  do  it  for  him,  until  the  further  older 
of  the  court,  upon  the  defendant's  giving  bond,  with  satisfactory  security,  for 
the  payment  to  the  receiver  of  the  rente  received  by  him.  Held,  that  such 
order  could  not  be  appealed  from. 


The  case  sufficiently  appears    in    the  opinion  of  the  court, 
which  was  delivered  by  Chief  Justice  GEE  EN. 


640          COURT  OF  ERRORS  AND  APPEALS. 

Garr  v.  Hill. 

The  court  are  unanimously  of  opinion  that  no  appeal  will  lie 
from  the  order  complained  of  in  this  case. 

The  subject  matter  of  controversy  in  the  cause  was  the  right 
to  certain  real  estate  in  Jersey  City.  The  appellant,  who  was 
complainant  in  the  original  bill,  had  obtained  an  injunction  re- 
straining the  defendant  from  aliening  or  encumbering  the  pro- 
perty, and  from  collecting  or  receiving  the  rents.  An  order  had 
also  been  made  at  the  instance  of  the  appellant,  appointing  a 
receiver  of  the  rents  and  profits. 

By  an  order  bearing  date  on  the  )3th  of  February,  1845,  the 
Chancellor  authorized  the  receiver,  instead  of  collecting  the 
rents  in  person,  to  permit  the  defendant  to  perform  that  duty 
for  him,  until  the  further  order  of  the  court,  upon  the  defend- 
ant's giving  bond,  with  satisfactory  security,  for  the  payment  to 
the  receiver  of  the  rents  received  by  him,  under  the  authority 
of  the  court.  This  is  the  order  complained  of. 

Without  attempting  to  define  with  precision  the  line  which 
marks  the  boundary  between  appealable  and  non-appealable 
orders,  the  court  deem  it  perfectly  clear  that  this  is  an  order 
from  which  no  appeal  can  be  taken.  The  party  cannot,  in  a 
legal  sense,  be  aggrieved  by  it.  It  does  not  touch  the  merits  of 
the  question.  It  does  not  affect  the  rights  or  interests  of  the 
party.  It  leaves  the  subject  matter  of  the  controversy  precisely 
where  it  stood  before.  It  is  simply  an  order  regulating  the  con- 
duct of  an  officer  of  the  court.  It  permits  the  receiver  to  collect 
the  rents  by  proxy — not  in  person.  It  retains  the  fund  under 
the  control  and  subject  to  the  order  of  the  court,  precisely  as  it 
was  before.  It  does  not,  as  was  suggested  by  the  counsel  of  the 
appellant,  modify,  much  less  dissolve,  the  injunction.  It  does 
indeed  permit  the  defendant  to  collect  the  rents  ;  not,  however, 
for  himself,  but  as  the  agent  of  the  receiver,  and  for  the  benefit 
of  the  fund,  under  the  control  of  the  court. 

The  order  might  have  been  made  at  the  instance  of  the  re- 
ceiver, without  notice  to  either  of  the  parties.  It  is,  moreover, 
an  order  which,  at  any  time,  upon  the  application  of  either  party, 
may  be  rescinded  or  modified  by  the  Chancellor.  If  the  security 
taken  by  the  receiver  be  insufficient,  it  is  competent  for  either 
party  to  apply  for  further  directions  upon  that  point. 

A  refusal  by  the  Chancellor  to  appoint  a  receiver,  or  the  re- 


JANUARY  TERM,  1847.  641 

Garr  v.  Hill. 

moval  of  a  receiver  when  appointed,  is  not  the  subject  matter 
of  appeal.  In  Rogers  v.  Hosack's  Ex'rs,  18  Wend.  329,  the 
Court  of  Errors  of  New  York  held  that  no  appeal  would  lie 
from  an  order  of  the  Chancellor  refusing  to  remove  an  executor 
and  to  appoint  a  receiver  in  his  stead.  In  that  case,  Justice 
Co  wen  said,  "  I  understand  the  line  of  authorities  to  stand  al- 
most without  exception,  that  to  warrant  a  reversal  upon  appeal 
from  chancery,  some  definite  rule  of  law  or  equity  must  appear 
to  have  been  violated."  The  appeal  must  be  dismissed  with 
costs. 

The  court  deem  it  their  duty  thus  to  dispose  of  the  cause, 
from  a  regard  to  the  maintenance  of  the  proper  practice  of  the 
court,  although  the  motion  to  dismiss  the  appeal  was  not  pressed 
on  the  part  of  the  respondent.  Inasmuch,  however,  as  tho 
merits  of  the  case  were  fully  discussed  by  counsel  upon  the  ar- 
gument, and  as  it  may  be  more  satisfactory  to  the  parties,  the 
court  authorize  me  to  add,  as  their  unanimous  opinion,  that  the 
order  of  the  Chancellor  was  right,  and  had  the  appeal  beeu 
regular,  the  order  should  be  affirmed. 

CITED  in  Woodruff  v.  Chapin,  3  Zab,  559  ;  State  v.  Wood,  Id.  560 ;  Owen  v. 
Arvis,  2  Dutch.  43;  Attorney  General  v.  City  of  Paterson,  1  Siock.  629 
Matter  of  Anderson,  2  (7.  E.  Gr.  538  ;  National  Bank  of  Metropolis  v. 
Spragie,  6  C.  E.  Gr.  460  ;  C.  &  A.  &  R.  Co.  v.  Stewart,  6  C.  E.  Or.  480. 


COURT  OF  ERRORS  AND  APPEALS. 


APKIL  TERM,  1847. 


[The  term  of  FERDINAND  S.  SCHENCK  expired  February  5th, 
1847,  and  he  was  re-appointed  for  six  years  from  that  day.] 


VANROOM   BOBBINS,  APPELLANT,  AND  JOHN  L.  McKNIGHT, 
RESPONDENT. 

A  and  B  entered  into  an  agreement  that  A  should  furnish  2700  peach  trees, 
at  his  expense,  and  that  B  should  plant  and  cultivate  them  on  his  farm,  at  his 
expense,  and  should  pick  and  market  the  fruit  during  the  life  of  the  trees,  at 
the  joint  expense  of  the  parties,  and  account  to  A  for  half  the  net  proceeds 
of  the  sales.  The  trees  were  furnished  and  planted  and  cultivated  accord- 
ingly. A  died,  and  the  administrator  of  his  estate  sold  his  interest  to  D 
Held,  that  the  Court  of  Chancery,  on  bill  filed  by  D,  might  decree  the  per- 
formance of  the  agreement  and  an  account  and  the  payment  to  D  of  half  the 
net  proceeds  of  the  sales. 

This  case  is  reported  ante  p.  229.     It  was  argued  on  the  ap- 
peal by 

W.  N.  Jeffers  and  A.  Browning,  for  the  appellant,  and  by 
S.  G.  Potts  and  P.  D.  Vroom,  for  the  respondent. 

The  opinion  of  the  court  was  delivered  by  Chief  Justice 
GREEN. 

642 


APRIL  TERM,  1847.  643 

Bobbins  v.  McKnight. 

CHIEF  JUSTICE.  It  is  objected  in  the  first  place,  that  the 
terms  of  the  contract,  as  set  forth  in  the  bill,  or  as  established  by 
the  proofs,  are  not  in  themselves  sufficiently  certain  to  entitle  the 
complainant  to  a  specific  performance. 

It  is  an  admitted  principle  of  equity  that  all  the  terms  of  a 
contract  must  be  clear  and  definitely  ascertained,  so  as  to  enable 
the  court  to  arrive  at  a  satisfactory  result  as  to  the  entire  con- 
tract, or  a  specific  performance  will  not  be  decreed.  Stop's  Eq. 
PL  767. 

The  only  exception  which  has  been  taken  to  the  terms  of  the 
contract,  as  stated  in  the  complainant's  bill,  is  that  it  does  not 
appear  by  whom,  or  under  whose  direction,  the  fruit  is  to  be 
picked  and  marketed.  In  every  other  respect,  it  is  not  denied 
that  the  terms  of  the  contract  as  set  forth  are  sufficiently  clear 
and  specific. 

However  serious  an  objection  this  might  have  been  to  a  spe- 
cific execution  of  the  contract  as  set  out  in  the  bill  of  complaint, 
the  whole  difficulty  is  removed  by  the  express  admission  of  I  he 
defendant's  answer.  The  answer  states  that  by  the  agreement 
the  peaches  were  to  be  picked  and  marketed  by  the  defendant ; 
and  the  decree  of  the  Chancellor  is  made  in  strict  accordance 
with  this  admission.  It  surely  does  not  lie  in  the  mouth  of  the 
appellant  to  insist  that  the  contract  lacks  precision  in  a  particu- 
lar which  is  distinctly  stated  and  admitted  by  him  in  his  answer 
under  oath. 

2d.  It  is  objected  that  the  contract, 'as  sought  to  be  enforced,  is 
not  established  with  sufficient  certainty  by  the  evidence. 

Now  the  fact  of  the  making  of  the  contract.  That  by  the  terms 
of  the  agreement,  2700  trees  were  to  be  furnished  by  Jaques 
and  delivered  at  Caniden,  at  his  expense;  that  they  were  to  be 
cultivated  by  Robbins  on  his  farm;  that  they  were  to  be  picked 
and  marketed  by  him  at  the  joint  expense  of  both  parties;  and 
that  the  net  proceeds  were  to  be  equally  divided  between  them, 
are  all  distinctly  admitted  by  the  defendant's  answer.  Upon 
these  points  no  further  proof  was  requisite.  They  are  established 
by  evidence  which  is  conclusive  against  the  appellant.  Gr&sley'a 
Eq.  Ev.  10,  165;  1  Smith's  Chan.  Pr.  273;  4  Mad.  JR.  16,  E. 
In.  Co.  v.  Keighley. 

The  only  points  to  be  settled  by  the  evidence  were: 


644         COURT  OF  ERRORS  AND  APPEALS. 

Bobbins  v.  McKnight. 

1.  At  whose  expense  were  the  trees  to  be  carted  from  Camden 
and  cultivated  ? 

2.  Was  the  balance  due  on  a  promissory  note  for  one  hun- 
dred and  seventy  dollars  and  thirty-five  cents,  bearing  date  the 
5th  of  April,  1841,  given  by  Richard  and  Samuel  R.  Jaques  to 
the  appellant,  to  be  deducted  from  Jaques'  share  of  the  net  pro- 
fits? 

The  terms  of  the  contract,  as  set  out  by  the  complainant's  bill, 
are  substantially  proved  by  Samuel  R.  Jaques.  who  was  present 
when  the  contract  was  made;  by  Ballanger,  who  heard  them 
from  the  lips  of  Jaques,  in  the  presence  and  hearing  of  Robbinsj 
and  by  Knowles,  who  details  them  as  they  were  stated  by  Rob- 
bins,  after  the  death  of  Jaques.  There  is  evidence  standing 
unimpeached  amply  sufficient  to  overcome  the  answer  of  the 
defendant,  (even  if  unexceptionable,)  and  the  corroborative  testi- 
mony of  Pierson,  the  only  witness  by  whom  either  of  its  .mate- 
rial allegations  seem  to  be  supported.  In  addition  to  this,  we 
have  the  conclusive  fact  that  the  note,  the  payment  of  which  is 
alleged  by  the  answer  to  have  been  one  of  the  terms  of  the  con- 
tract between  Robbins  and  Jaques,  bears  date  at  least  one  year 
after  the  contract  was  executed. 

3.  It  is  objected  that  the  contract  is  void,  as  being  within  the 
operation  of  the  statute  against  frauds  and  perjuries. 

To  whatever  weight  this  objection  might  have  been  entitled 
at  law,  it  is  clear  that  in  a  court  of  equity  it  has  been  exempted 
from  the  operation  of  the  statute  by  part  performance.  In  pur- 
suance and  part  performance  of  the  agreement,  the  trees  have 
been  purchased  and  delivered  by  Jaques,  and  received,  planted 
and  cultivated  by  Robbins.  The  grounds  of  objection  to  the 
enforcement  of  a  parol  agreement  are  removed.  Neither  party 
can  be  restored  to  the  position  in  which  he  stood  before  the 
making  of  the  contract;  and  equity  requires  that  the  agreement 
should  be  specifically  carried  into  execution. 

3.  It  is  objected  that  the  contract  between  Jaques  and  Rob- 
bins  constituted  a  partnership;  that  the  interest  of  a  deceased 
partner  in  the  partnership  effects  cannot  be  sold,  ami  that  the 
purchaser  cannot  interfere  with  the  rights  of  the  surviving  part- 
ner. 

Admitting  the  contract  to  have  constituted  a  strict  commer- 


APRIL  TERM,  1847.  645 

Bobbins  v.  McKnight. 

cial  partnership,  it  would  seem  to  be  a  sufficient  answer  to 
the  objection  to  say,  that  although  the  legal  title  to  the  part- 
nership effects,  upon  the  death  of  one  partner,  vests'in  the  sur- 
vivor, the  beneficial  interest  remains  in  his  representative ; 
that  a  valid  assignment  may  be  made  of  this  beneficial  inter- 
est, which  will  vest  in  the  assignee  a  right  in  equity  to  an 
account  and  to  a  fulfillment  of  the  trust  by  the  surviving  partner; 
that  the  decree,  in  this  case,  in  no  wise  interferes  with  the  legal 
rights  of  the  survivor,  but  designs  to  enforce  an  account  of  the 
trust,  which  the  defendant,  by  his  answer,  admits  that  he  is 
bound  to  render. 

But  I  am  of  opinion  that  this  agreement,  as  between  the  par- 
ties themselves,  constituted  no  partnership.  A  participation  in 
the  profits,  does  not,  necessarily,  and  in  all  cases,  constitute  the 
recipient  a  legal,  responsible  holder.  There  is  a  large  and 
familiar  class  of  cases  not  within  the  general  principle.  Per- 
rine  v.  Hankinson,  6  Halst.  181  ;  Heskdh  v.  Blanchard,  4.  East 
144 ;  Wilkinson  v.  Frazier,  4  Esp.  182 ;  Huzzy  v.  Whitney,  10 
John.  Rep.  228. 

To  constitute  a  partnership,  as  between  the  parties  themselves, 
there  must  be  a  joint  ownership  of  the  partnership  funds.  Chase 
v.  Barrett,  4  Paige  160;  3  Kenfs  Com.  24. 

There  was  no  such  joint  ownership,  as  between  these  parties. 
No  new  right  was  acquired  by  survivorship,  upon  the  death  of 
Jaques:  no  interest  upon  which  the  rights  of  survivorship  could 
attach.  The  legal  rights  of  Robbins  were  unaffected  by  the 
death  of  Jaques. 

I  regard  the  agreement  as  a  special  contract,  under  which 
Jaques  is  to  be  remunerated  for  the  cost  of  the  trees,  by  receiv- 
ing a  share  of  the  profits.  The  contract,  in  its  operation  and 
legal  effect,  is  simply  a  sale  of  the  trees  by  Jaques  to  Robbins, 
in  consideration  of  his  receiving  therefor,  one-half  of  the  pro- 
ceeds of  the  sales  of  the  fruit,  deducting  thereout  the  cost  of 
picking  and  marketing  the  fruit. 

It  was  said,  upon  the  argument,  that  this  was  a  contract 
respecting  land,  or  an  interest  in  land.  I  cannot  so  regard  it. 
On  the  contrary,  I  think  it  clear  that,  immediately  upon  the 
trees  being  received  and  planted  by  Robbins,  upon  his  land,  the 
legal  title  to  them  vested  exclusively  in  him.  Jaques  retained  110 


646          COURT  OF  ERRORS  AND  APPEALS. 

Bobbins  v.  McKnight. 

legal  interest  in  the  trees,  much  less  acquired  any  in  the  soil 
upon  which  they  were  planted.  They  became  a  part  of  Rob- 
bins'  freehold,  and,  in  law,  he  stood  seized  of  them  as  fully  and 
exclusively  as  of  any  other  part  of  his  freehold.  True,  he  was 
a  trustee  in  equity,  and  bound,  by  virtue  of  his  trust,  to  cultivate 
the  trees  in  a  careful  and  husbandlike  manner,  bound  to  pre- 
serve them  from  waste  or  destruction,  and  bound  to  account  to 
Jaques,  his  legal  representative  or  assignee,  for  his  share  of  the 
net  profits.  This  is  the  true  limit  and  extent  of  Jaques'  inter- 
est in  the  property.  As  cestui  que  trust  of  one-half  of  the  prof- 
its, he  was  entitled  to  have  the  trees  properly  cultivated,  and  the 
fruit  properly  marketed.  By  giving  this  construction  to  the  con- 
tract, I  think  we  shall  best  effectuate  the  intention  of  the  par- 
ties, and  most  effectually  secure  their  respective  rights. 

5.  This  view  of  the  case  affords  an  answer  to  the  fifth  objec- 
tion urged  to  the  decree,  viz.,  that  at  the  time  of  the  bill  filed, 
the  complainant  was  not  entitled  to  the  relief  afforded  by  the 
decree. 

At  the  time  of  filing  the  bill,  the  existence  of  the  trust  had 
been  denied  by  the  appellant;  the  complainant  sought  to  have 
the  trust  established.  The  trustee  claimed  an  exclusive  control 
over  the  trust  property,  and  a  right  to  deal  with  it  to  the  preju- 
dice of  the  interests  of  the  cestui  que  trust.  The  bill  sought  to 
restrain  the  exercise  of  that  power  so  far  as  to  prevent  waste  and 
to  protect  the  interests  of  the  cestui  que  trust.  These  were^ 
unquestionably,  proper  objects  of  relief  in  equity,  and  the  court, 
having  once  obtained  jurisdiction  of  a  cause  for  one  purpose,  will 
retain  it  for  the  more  important  purposes  of  the  suit.  And  this, 
although  they  be  distinct  and  independent  grounds  of  relief  from 
those  originally  contained  in  the  bill,  and  although  it  becomes 
necessary  to  file  a  supplemental  bill  to  bring  the  case  fully 
before  the  court.  But  here,  there  was  no  new  and  substantial 
ground  of  relief — nothing  requiring  the  aid  of  a  supplemental 
bill.  The  court  was  fully  in  possession  of  the  cause  for  the  pur- 
pose of  establishing  the  trust  and  the  protection  of  the  trust  prop- 
erty. During  the  pendency  of  the  suit,  the  trustee  becomes 
possessed  of  trust  funds,  and  the  court  compel  him  to  account 
for  the  funds  so  received,  pursuant  to  the  prayer  of  the  bill  aa 
amended  by  leave  of  the  court.  This,  we  apprehend,  is  in  ac- 


JANUARY  TERM,  1847.  G47 

Robbins  v.  McKnight. 

cordance  no  less  with  sound  principle  than  with  the  ancient 
usage  and  established  practice  of  the  Court  of  Chancery. 

The  last  objection  to  the  decree  appealed  from  is  that  it  denies 
to  the  appellant  the  right  to  an  allowance  upon  taking  the  ac- 
count before  the  master,  of  the  amount  of  Richard  and  Samuel 
R.  Jaques'  note  of  the  5th  of  April,  1841. 

It  is  very  clear  that  this  claim  cannot  be  allowed  upon  the 
ground  assumed  in  the  answer,  viz.,  that  it  formed  a  part  of  the 
original  contract.  The  evidence  is  clearly  otherwise. 

But  it  was  insisted  upon  the  argument  with  much  earnest- 
ness and  force  of  reasoning,  that  independent  of  any  contract, 
the  appellant  was  entitled  upon  accounting  to  the  allowance  of 
the  amount  of  that  note  as  an  equitable  set-off  against  the  claim 
of  the  complainant.  That  inasmuch  as  it  appeared  by  the  evi- 
dence that  Samuel  R.  Jaques  had  paid  his  share  of  the  joint 
iu>te,  the  balance  remaining  due  became  in  equity  the  sole  debt 
of  ] lie-hard  Jaques,  and  should  be  allowed  against  the  claim  of 
the  complainant,  the  estate  of  Richard  Jaques  being  insolvent. 

As  a  general  principle  equity  follows  the  law  in  the  allow- 
ance of  a  set-off,  and  will  not  allow  a  set-off  of  debts  accruing 
in  different  rights.  Even  in  cases  of  bankruptcy  it  is  not  al- 
lowed, except  under  special  circumstances. 

In  the  case  of  Hanson,  ex  parte,  18  Vesey  232,  which  was 
cited  on  the  argument  in  support  of  the  claim  of  set-off,  the 
joint  debt  was  a  mere  security  for  the  separate  debt  of  the  party 
claiming  the  set-off,  and  the  Chancellor  places  the  decision  dis- 
tinctly on  that  ground. 

It  is  true  that  Lord  Roslyn,  in  Ex  parte  Quinten,  3  Vesey 
248,  allowed  the  set-off  in  a  case  of  bankruptcy,  under  circum- 
stances which  might  be  supposed  to  justify  it  in  the  present 
instance.  But  in  Ex  parte  Troogood,  11  Vesey  416,  Lord 
Eldon  denied  a  similar  application,  which  was  based  upon  the 
authority  of  Lord  Roslyn's  decision,  in  Ex  parte  Quiuten,  de- 
nying the  authority  of  that  case.  In  Addis  v.  Kniglit,  2  Her. 
124,  Sir  William  Grant,  master  of  the  rolls,  decided  in  accord- 
ance with  the  views  of  Lord  Eldon,  adding,  "  It  is  quite  clear 
that,  as  at  law,  a  joint  cannot  be  set  off  against  a  separate  de- 
mand." The  same  rule  prevails  in  equity,  and  must  continue 


648    COURT  OF  ERRORS  AND  APPEALS. 

Bobbins  v.  McKnight. 

to  prevail  so  long  as  the  present  system  in  regard  to  joint  and 
separate  estates  subsists. 

In  Dale  v.  Cook,  4  John.  Ch.  R.  15,  Chancellor  Kent,  upon 
a  review  of  the  authorities,  said,  "My  conclusion  is  that  joint 
and  separate  debts  cannot  be  set  off  in  equity,  any  more  than 
at  law."  And  the  current  of  American  authorities  seems  fully 
to  sustain  this  opinion.  2  Story's  Eg.,  §  1437,  note  1. 

To  warrant  the  interference  of  a  court  of  equity,  there  must 
be  special  circumstances  creating  an  equity.  Whether  the  mere 
insolvency  of  one  of  the  parties  creates  such  an  equity,  has  given 
rise  to  some  difference  of  opinion.  Insolvency  alone  was  con- 
sidered as  affording  such  equity  in  Pond  v.  Smith,  4  Conn. 
Rep.  297,  and  the  same  principle  was  adopted  by  the  Court  of 
Errors  in  New  York,  in  Simpson  v.  Hart,  14  J.  R.  63. 

But  Mr.  Justice  Story,  in  Green  v.  Darling,  5  Mason  145, 
and  in  Howe  v.  Shepherd,  2  Sumner  416,  expresses  his  dissent 
from  the  principle  adopted  in  Connecticut  and  New  York,  and 
in  the  latter  case  he  declares  that  his  researches  have  not  enabled 
him  to  find  in  English  jurisprudence  a  single  decision  which 
countenances  any  such  equity  for  a  set-off.  In  Gordon  v.  Lewis, 
2  Sumner  633,  the  same  learned  judge  re-asserted  the  doctrine 
that  insolvency  alone  constitutes  no  ground  for  the  interference 
of  the  court. 

The  appellant  in  the  present  case  labors  under  the  further 
embarrassment  in  support  of  this  claim,  that  he  is  seeking  the 
aid  of  a  court  of  equity  to  establish  an  equitable  set-off  against 
a  bona  fide  assignee  of  the  individual  debt,  for  a  valuable  con- 
sideration without  notice;  and  that,  too,  without  having  made 
the  claim  a  distinct  ground  of  defence  by  his  answer.  If  any 
doubt  can  be  entertained  as  to  the  general  principle  involved  in 
this  point,  theso  objections  would  be  conclusive  against  the  ap- 
pellant's title  to  relief. 

I  am  of  Opinion  that  the  decree  of  the  Chancellor  should  be 
affirmed,  with  costs,  and  that  the  record  be  remitted  to  the  Court 
of  Chancery,  to  be  proceeded  in  agreeably  to  law. 

Per  tot.  cur.  Decree  affirmed . 


COURT  OF  ERRORS  AND  APPEALS. 


OCTOBER  TERM,  1847. 


HENRY  A.  MOORE,  EXECUTOR,  Ac.,  OF   RESCARRICK  MOORE, 
DECEASED,  APPELLANT,  AND  JULIA  SMITH,  RESPONDENT. 

1.  Though  there  be  no  express  evidence  of  the  delivery  of  an  ante-nuptial 
agreement,  and  though  it  was  in  the  possession  of  the  husband  after  the  mar- 
riage, \tf  delivery  will  be  presumed  if  its  due  execution  be  proved  and  it  ap- 
pear that  it  was  recognized  by  the  husband. 

2.  If  an  executor  receive  the  effects  of  his  testator  and  does  not  apply  them 
in  due  course  of  administration,  his  estate  it  liable,  and  his  executor  may  be 
called  upon  in  equity  to  pay  the  legacies  in  due  course  of  administration  of 
the  assets  which  came  to  his  hands. 

This  case  is  reported  in  3  Green's  Ch.  R.  485. 

8.  R.  Hamilton  and  P.  D.  Vroom,  for  the  appellant.  They 
cited  3  Kent's  Com.  521,  524,  528,  529;  2  Ibid.  444;  Dickens 
663;  6  Simons  40;  5  Ves.  654;  7  Ibid.  558;  9  Ibid.  107;  2 
Swanst.  288  ;  7  John.  Chan.  269. 

W.  Hoisted,  for  the  respondent. 

The  decree  of  the  Chancellor  was  unanimously  affirmed. 
VOL.  i.  2s  649 


650         COURT  OF  ERRORS  AND  APPEALS. 


Plnme  v.  Small. 


JOHN  L  PLUME,  APPELLANT,  AND  GEOKGE  D.  SMALL,  RE- 

SPONDENT. 

1.  The  conditions  of  sale  for  the  sale  of  lands  and  buildings  provided  for  the 
Bale  of  the  buildings  separately  ;  and  one  of  the  conditions  of  the  sale  was  as 
follows:  "The  buildings  will  be  sold,  to  be  removed  within  thirty  days  from 
this  date,  from  the  premises."     Held,  that  the  purchaser  of  a  building  who 
also  purchased  the  lot  on  which  it  stood,  was  not  bound  to  remove  the  build- 
ing. 

2.  The  Court  of  Chancery  cannot  act  on  a  distinct  ground  for  relief  made 
by  the  proofs,  if  it  be  not  set  up  in  the  bill. 


This  ease  is  reported  ante  p.  460. 

A.  Gifford  and  Wm.  Halsted,  for  the  appellant. 

A.  C.  M.  Pennington,  for  the  respondent. 

The  decree  of  the  Chancellor  was  unanimously  affirmed. 


THE  COMMERCIAL  BANK  OF  NEW  JERSEY,  APPELLANT,  AND 
JOSEPH  W.  RECKLESS  AND  WIFE,  RESPONDENTS. 

1.  The  possession  by  a  mortgagee  of  a  mortgage  executed  and  recorded  is, 
in  itself,  cogent  evidence  of  delivery. 

2.  The  answer  of  a  mortgagor  to  a  bill  of  foreclosure  denying  the  delivery 
of  the  mortgage  is  not,  in  itself,  sumcient  to  overcome  the  presumption  of  de- 
livery arising  from  the  possession  of  the  mortgage  by  the  mortgagee,  duly  ex- 
ecuted, acknowledged  and  recorded. 

3.  The  uncorroborated  testimony  of  a  single  witness  is  not  sumcient  to  over- 
come the  denial  of  an  answer. 

4.  An  answer  may  contain  within   itself  such  circumstances  as  will  alone 
suffice  to  deprive  it  of  all  efficacy.     Per  Chief  Justice  GREEN. 

5.  What  evidence  held  sufficient  of  the  delivery  of  a  mortgage,  though  the 
bond  to  secure  which  the  mortgage  was  given  was  in  the  possession  of  the 
obligor.  

This  case  is  reported  ante  p.  430.  C.  Parker  and  P.  D. 
Froom,  for  the  appellant.  J.  Vandyke  and  W.  L.  Dayton,  for 
the  respondents. 


OCTOBER  TERM,  1847.-  651 


Commercial  Bank  v.  Reckless. 


Chief  Justice  GREEN  delivered  the  following  opinion  : 

The  only  question  in  this  cause  is,  whether  the  mortgage  was 
delivered.  It  is  admitted  by  the  answer  that  the  debt  was  due; 
that  the  mortgage  was  executed  in  pursuance  of  au  agreement 
between  the  parties ;  but  the  delivery  is  denied. 

The  possession  by  the  mortgagee  of  the  mortgage  executed 
and  recorded,  is  in  itself  cogent  evidence  of  delivery.  Is  the 
answer  alone  sufficient  to  overcome  that  evidence  ? 

The  rule  in  equity  is  well  established,  that  the  uncorroborated 
testimony  of  a  single  witness  is  not  sufficient  to  overcome  the 
denial  of  an  answer,  for  the  simple  reason  that  it  is  but  oath 
against  oath.  It  requires  that  the  testimony  of  the  witness 
should  be  supported  by  additional  evidence,  direct  or  circum- 
stantial. Circumstances  alone,  however,  without  the  testimony 
of  a  single  witness,  may  overthrow  an  answer.  The  answer 
itself  may  be  so  obviously  contradictory,  inconsistent,  and  in- 
credible; may  contain  within  itself  such  circumstances  as  will 
alone  suffice  to  deprive  it  of  all  efficacy  and  vitality.  The  rule 
obviously,  ex  necessitate,  applies  only  to  a  fair  and  untainted 
answer — not  to  an  answer  hi  itself  inconsistent,  contradictory,, 
incredible. 

Admitting  the  answer  in  the  present  case  to  be  fair  and  un- 
tainted, the  question  is  presented,  whether  the  answer  of  a  de- 
fendant in  equity  to  a  bill  of  foreclosure,  denying  the  delivery 
of  the  mortgage,  is  in  itself  sufficient  to  overcome  the  presump- 
tion of  delivery  arising  from  the  possession  of  the  mortgage 
by  the  mortgagee,  duly  executed,  acknowledged,  and  recorded. 
Must  the  mortgagee,  to  overcome  the  answer,  be  fortified  with 
proof  of  the  fact  of  delivery,  beyond  that  afforded  by  the  mort- 
gage itself?  I  think  not.  It  would  render  mortgage  securities 
alarmingly  insecure.  Upon  a  bill  of  foreclosure,  the  complainant 
has  no  option  whether  to  trust  the  answer  of  the  mortgagor. 
He  is  compelled  to  make  him  a  defendant,  and  to  receive  his 
answer.  He  may  be  utterly  without  character,  legally  infa- 
mous, or  even  attainted  of  perjury — the  mortgagee  must  still 
appeal  to  his  conscience.  His  answer  must  be  taken,  and  that 
answer  has  the  same  efficacy,  so  far  as  mere  character  is  con- 
cerned, as  the  answer  of  the  most  pure  and  irreproached  charao- 


652         COURT  OF  ERRORS  AND  APPEALS. 

Commercial  Bank  v.  Reckless. 

ter  in  society.  I  hold  that  the  possession  by  a  mortgagee  of  a 
mortgage  duly  executed  and  acknowledged,  affords  such  cogent 
presumptive  proof  of  delivery  as  cannot  be  overcome  by  the 
naked  answer  of  the  mortgagor. 

I  am  of  opinion,  moreover,  that  this  answer  is  not  entitled  to 
the  weight  of  a  fair  and  consistent  answer,  but  is,  iu  many  ma- 
terial respects,  seriously  impeached. 

1.  The  answer  alleges  that  the  defendant  was  induced  by  the 
urgent  importunity  of  the  complainants  to  execute  the  mortgage. 

Two  witnesses  testify  that  the  mortgage  was  taken  at  the  in- 
stance of  Mrs.  R.,  to  secure  her  husband  from  prosecution  by 
the  bank.  It  appears,  moreover,  that  Reckless,  at  the  time  of 
the  transaction,  was  confined  to  his  house  by  indisposition. 
There  is,  upon  the  evidence,  no  pretence  of  any  correspondence 
directly  between  the  bank  and  the  defendant,  either  verbally  or 
in  writing.  The  whole  correspondence  was  through  the  wife 
and  sou  of  the  defendant.  The  evidence  utterly  negatives  this 
pretence  of  solicitation  and  importunity. 

2.  The  answer  alleges  that  the  defendant  was  debilitated  in 
mind   by  extreme  illness,  and  was  at  the  time  confined  to  his 
room  by  sickness. 

This  is  expressly  negatived  by  the  defendant's  own  son  and 
witness. 

The  answer  avers  that  the  bond  was  never  out  of  the  defend- 
ant's possession;  and  that  immediately  after  signing  the  papers, 
induced  thereto  by  the  importunity  of  the  complainants,  he 
resolved  to  have  nothing  further  to  do  with  the  matter  j  and 
if  it  does  not  expressly  deny,  it  involves  the  implication  strongly 
and  clearly,  that  he  did  nothing  further  towards  completing  the 
transaction. 

Now  it  appears  unequivocally,  by  the  papers  and  by  the  testi- 
mony of  the  defendant's  son  and  agent,  that,  for  three  weeks  after 
the  execution  of  the  bond  and  mortgage,  measures  were  in  pro- 
gress to  carry  the  arrangement  into  effect.  The  mortgage  was 
executed  and  acknowledged  on  the  5th  of  March  ;  the  policy  of 
insurance  was  issued  on  the  8th ;  its  transfer  authorized  on  the 
16th  ;  the  mortgage  was  left  at  the  clerk's  office  on  the  24th  ; 
the  certificate  of  the  clerk  was  procured  on  the  25th  of  that 
month,  and  afterwards  furnished  to  the  bank. 


OCTOBER  TERM,  1847.  653 

Commercial  Bank  v.  Reckless. 

4.  The  answer  avers  that  the  son  took  the  mortgage  out  of 
the  defendant's  possession  at  his  request,  in  order  to  procure  a 
certificate  of  search  as  to  encumbrances.  The  son  avers  that 
the  search  was  made  not  at  his  father's,  but  at  Brueu's  request, 
and  denies  that  his  father  had  any  knowledge  of  it  till  weeks 
afterwards. 

But  I  forbear  to  press  this  topic  further.  It  is  obvious  that 
these  are  not  mere  discrepancies  or  inconsistencies  in  immate- 
rial averments.  They  involve  the  whole  fabric  of  the  defence. 
Every  material  allegation  and  pretence  of  the  answer  is  directly 
impeached  by  the  evidence.  It  stands  utterly  unsupported. 

If  the  doctrine  falsus  in  uno,  falsus  in  omnibus,  can  ever 
have  application  to  an  answer  in  equity,  it  seems  to  me  it  must 
be  applied  here.  In  my  judgment,  this  answer  is  not  entitled  to 
the  weight  of  a  fair  and  consistent  answer. 

But  suppose  the  answer  to  stand  irreproachable,  how  stands 
the  case  upon  the  evidence? 

The  complainants  not  ou)y  have  the  strong  presumption  in 
their  favor  arising  from  the  possession  of  a  mortgage  regularly 
executed,  acknowledged  and  recorded,  but  they  prove  expressly 
by  their  cashier  that  the  bond  and  mortgage  were  delivered  to 
and  accepted  by  the  bank.  This  evidence  is  not  overcome  by 
the  testimony  of  Anthony  Reckless,  the  only  witness  called. 
Indeed,  I  think  there  is  enough  in  the  evidence  of  this  witness 
himself  to  create  a  strong  impression,  if  not  a  decided  belief,  that 
the  mortgage  was,  in  fact,  by  authority  of  his  father,  delivered, 
and  left  by  him  at  the  clerk's  office  to  be  recorded,  though  it 
was  not  to  be  available  in  the  hands  of  the  bank  until  the  notes 
held  by  the  bank  were  surrendered  ;  the  mortgage  being  in- 
tended not  as  collateral  security,  but  as  a  substitute  for  the 
notes.  It  is  charged,  however,  in  the  bill,  uudenied  by  the  an- 
swer, and  expressly  proved  by  two  witnesses,  that  the  mortgage 
was  intended  merely  as  collateral  security.  In  addition  to  all 
this,  we  have  the  strongly  corroborative  circumstances  in  sup- 
port of  the  complainants'  title,  that  the  mortgage  was  suffered  to 
remain  on  record  an  encumbrance  on  the  defendant's  property, 
unquestioned  by  the  mortgagor,  and  that  more  than  a  year 
after  its  date,  it  was  admitted  by  the  grantee  of  Reckless  to  be 
an  encumbrance  ou  the  mortgaged  premises 


6o4    COURT  OF  ERRORS  AND  APPEALS. 

Commercial  Bank  v.  Reckless. 

I  have  no  difficulty  whatever  in  disposing  of  the  case  made 
by  the  defence.  The  only  doubt,  it  appears  to  me,  arises  from 
the  conduct  of  the  complainants.  They  have  not  the  possession 
of  the  bond,  or  of  the  policy  of  insurance;  they  have  never  had 
them  since  they  were  returned  to  Anthony  Reckless  ;  so  far  as 
it  appears  they  never  demanded  them — and  never  had  the  pre- 
mises'insured  for  their  own  safety.  And  yet  I  think  their  con- 
duct may  be  accounted  for  rationally  and  consistently  with  the 
truth  of  their  case. 

lam  of  opinion  that  the  complainants  are  entitled  to  recover 
the  amount  due  upon  the  mortgage;  that  the  decree  of  tl»e 
Chancellor  must  be  reversed,  but  without  costs,  and  the  proceed  • 
ings  remitted  to  be  proceeded  in  agreeably  to  law. 

WHITEHEAD,  RANDOLPH  and  CARPENTER,  Justices,  and 
PORTER,  SCHENCK,  SPEER,  SPENCER  and  SINNICKSON,  Judges, 
concurred. 

Decree  reversed. 


COURT  OF  ERRORS  AND  APPEALS. 


JANUARY  TEEM,  1848. 


BENJAMIN   GEEOE   AND   WILLIAM   I.  STAGG,   APPELLANTS, 
AND  CORNELIUS  WINTER  AND  WIFE,  RESPONDENTS. 

D.  G.,  the  testator,  gave  the  remainder  of  his  real  estate  to  his  three  child- 
ren—P.,  the  wife  of  C.  W. ;  C.,  the  wife  of  W.  S.,  and  B.  G.,  in  fee  simple,  to 
be  divided  or  sold-  as  two  out  of  the  three  heirs  could  agree,  and  appointed 
W.  S.  and  B.  G.  executors  of  the  will.  Held,  that  the  executors  had  no  power 
in  them  to  sell  or  to  divide  the  real  estate. 


This  case  is  reported  ante  p.  319. 

D.  Barkalow,  for  the  appellants. 

A.  8.  Pcnningion,  for  the  respondents. 

Chief  Justice  GREEN  delivered  the  following  opinion  : 

The  bill,  in  this  cause,  states  that  Daniel  Geroe,  by  his  last 
will  and  testament,  gave  the  remainder  of  his  real  estate  to  his 
three  children — Peggy,  the  wife  of  Cornelius  Winter,  the  com- 
plainant; Caty,  the  wife  of  William  Stagg,  and  Benjamin  Ge- 
roe, in  fee  simple,  to  be  divided  or  sold  as  two  out  of  the  three 
could  agree,  and  appointed  Stagg  and  Geroe  the  executors  of 
his  will.  It  charges  that  Stagg  and  Geroe,  as  executors  of  the 
said  estate,  and  as  devisees  under  his  will,  sold  and  conveyed 
the  real  estate  so  devised ;  that  the  said  sale  was  fraudulent  in 
fact,  being  made  at  an  under  price,  by  the  contrivance  of  the 

666 


656         COURT  OF  ERRORS  AND  APPEAI& 

Geroe  v.  Winter. 

respondents,  and  that  it  was  fraudulent  in  law,  being  made  to 
a  third  person,  as  the  agent  of  the  respondents,  and  for  their 
benefit,  in  violation  of  the  rule  of  law  that  no  executor  or  trustee 
can,  directly  or  indirectly,  become  a  purchaser  at  a  sale  made 
by  himself. 

In  the  absence  of  all  proof  of  actual  fraud,  the  case  made  by 
the  bill,  and  attempted  to  be  sustained  by  the  evidence,  is,  that 
the  sale  and  conveyance,  having  been  made  by  the  respondents, 
as  trustees  or  executors,  indirectly  to  themselves,  is,  therefore, 
fraudulent  in  law,  and  void. 

In  order  to  sustain  the  bill,  the  court  must  be  satisfied  that 
the  appellants,  as  trustees  of  Winter  and  wife,  or  as  executors 
of  the  will  of  Benjamin  Geroe,  sold  and  conveyed  to  themselves, 
directly  or  indirectly,  the  title  to  Winter's  share  of  the  real  estate. 

But  I  am  of  opinion  that  the  appellants  had  no  power  what- 
ever to  sell  the  share  of  Winter,  either  as  executors  or  as 
devisees. 

There  is  no  pretence  of  any  express  power  vested  in  the 
executors  to  sell  the  real  estate,  nor  can  any  such  power  be 
implied.  The  sale  was  not  made  for  the  purpose  of  settling  the 
testator's  estate,  for  the  payment  of  debts  or  legacies,  or  for  any 
purpose  which  the  executors,  as  such,  were  authorized  to  effect. 
On  the  contrary,  the  real  estate  was  devised,  by  the  testator,  to 
his  three  cnildren,  in  fee  simple,  to  be  divided  between  them,  or 
sold,  as  a  majority  of  them  could  agree.  Under  this  devise,  there 
can  surely  be  no  power  raised  by  implication,  in  the  executors, 
either  to  sell  or  to  divide  the  real  estate. 

Neither  was  any  power  conferred  upon  any  two  of  the  devi- 
sees, to  sell  the  share  of  the  third,  or  to  divide  the  land  at  their 
pleasure ;  there  was  neither  a  power  nor  a  trust  vested  in  them, 
for  this  purpose.  All  must  unite  in  making  the  sale  or  in  effect- 
ing the  partition,  or  resort,  for  this  purpose,  must  be  had  to 
some  judicial  tribunal. 

The  deed,  therefore,  as  to  the  share  of  the  complainants, 
Winter  and  wife,  in  the  real  estate  sold,  was  an  utter  nullity — 
no  title  did,  or  by  possibility  could,  pass  by  it.  The  title  of  the 
complainants  was  in  them  after  the  sale  and  conveyance  by  Geroe 
and  Stagg,  as  completely  as  before.  It  remained  unimpaired 
and  unaffected  by  the  conveyance.  I  cannot  conceive,  there- 


JANUARY  TERM,  1848.  657 


Geroe  v.  Winter. 


fore,  how  the  court  can  decree  the  sale  fraudulent,  or  decree  in 
favor  of  the  complainant,  upon  the  ground  charged  in  the  bill. 
On  the  other  hand,  if  the  court  should,  upon  the  merits  of  the 
case,  decree  against  the  complainants,  holding  that  the  sale  was 
not  fraudulent,  I  see  nothing  that  would  prevent  the  complain- 
ants from  bringing  an  ejectment  and  recovering  possession  of 
the  premises;  there  is  nothing  upon  the  face  of  the  bill  or  pro- 
ceedings in  this  case  to  estop  them  from  such  course. 

Inasmuch,  therefore,  as  this  sale  and  conveyance  was  not- 
made  by  virtue  of  any  power  vested  in  the  appellants,  either  as 
trustees  or  as  executors — as,  consequently,  no  fraud  in  law  is 
established  in  the  making  of  the  sale — as  no  other  ground  of 
relief  is  stated  in  the  complainants'  bill — as  the  pretended  sale 
and  conveyance  against  which  relief  is  sought  is  absolutely  null 
and  void,  and  as  the  complainants  have  full,  adequate,  and  com- 
plete relief  at  law,  I  am  of  opinion  that  the  decree  of -the  Chan- 
cellor should  be  reversed,  and  that  the  complainants'  bill  should 
be  dismissed,  but  without  costs. 

I  have  arrived  at  this  conclusion  with  much  reluctance.  The 
ground  upon  which  I  place  my  decision  seems  not  to  have  bet-u 
adverted  to  before  the  Chancellor ;  and,  although  suggested,  it 
was  not  discussed  in  this  court.  But,  entertaining,  as  I  do,  a 
cleat  conviction  of  the  legal  principles  which  govern  the  case, 
and  believing  that  a  final  decision  of  the  cause  upon  grounds 
not  charged  in  the  bill,  is  forbidden  alike  by  sound  principle  and 
the  settled  practice  of  the  court,  I  am  constrained  to  adopt  the 
course  which  I  have  indicated.  I  feel  the  less  reluctance  in 
doing  so,  as  the  decision  now  made,  in  substance,  accords  with 
the  decree  of  the  Chancellor,  is  a  decision  of  the  matter  in  con- 
troversy, and  will  lead,  it  is  hoped,  to  an  immediate  adjustment 
between  the  parties. 

NEVIUS,  WHITEHEAU,  and  CARPENTER,  Justices,  and  POR- 
TER, SCHENCK,  SPEER,  and  ROBERTSON,  Judges,  concurred  iu 
this  opinion.  RANDOLPH,  Justice,  and  SPENCER,  Judge,  votetl 
for  aflirmiiig  the  decree.  Deer»«  reversed. 

NOTE.— The  point  decided  by  this  court  was  not  presented  to  the  court 
below,  both  parties  having  submitted  the  question  of  the  validity  of  the  wile 
on  the  assumption  that  the  executors  had  power  to  sell.  The  appeal  was  from 
the  decree  of  the  court  below  declaring  the  sale  invalid. 


COURT  OF  ERRORS  AND  APPEALS. 


JULY  TERM,  1848. 


[The  official  term  of  AARON  ROBERTSON  expired  February 
5th,  1848,  and  ROBERT  H.  McCARTER  was  appointed  a  judge 
of  this  court  for  six  years  from  that  day.] 


JOSPH  E.  EDSALL  AND  ELIAS  L'HOMMEDIEU,  APPELLANTS, 
AND  THE  HAMBURGH  MANUFACTURING  COMPANY  AND 
OTHERS,  RESPONDENTS. 

Several  executions  had  been  levied  by  a  sheriff  on  the  lands  of  "  The  Ham- 
burgh Manufacturing  Company,"  of  which  the  first  in  priority  was  in  favor 
of  E.  The  same  sheriff  had  in  his  hands  at  the  same  time  an  execution 
issued  on  a  decree  in  chancery,  on  the  first  mortgage,  for  the  sale  of  the 
mine  farm  of  "The  Clinton  Manufacturing  Company,"  and  also  an  execu- 
tion at  law  against  the  said  Clinton  company,  by  virtue  of  which  he  had 
levied  on  the  said  Clinton  company's  mine  farm.  E.  held  a  subsequent 
mortgage  on  this  Clinton  mine  farm.  Prior  to  the  sale  by  the  sheriff,  cer- 
tain creditors  of  the  Hamburgh  company,  having  no  judgments,  together 
with  E.,  entered  into  an  agreement  in  writing  among  themselves,  that  L., 
one  of  them,  should,  as  their  trustee,  buy  the  lands  of  both  companies,  as 
a  means  of  securing  their  debts  against  the  Hamburgh  company,  including 
E.'s  judgment  and  other  claims  he  had  or  made  against  the  Hamburgh  com- 
pany, and  his  mortgage  on  the  Clinton  mine  farm.  There  was  also  an  under- 
standing with  P.,  who  held  the  bulk  of  the  stock  of  both  companies,  and 
was  carrying  on  or  conducting  the  business  of  the  Hamburgh  company, 
that  the  said  trustee  should  convey  both  properties  to  him,  on  his  paying 
the  debts  of  the  said  agreeing  Hamburgh  creditors  and  the  sums  for  which, 

658 


JULY  TERM,  1848.  659 

Edsall  v.  Hamburgh  Mamif.  Co. 

the  properties  should  be  struck  off  to  the  said  trustee.  The  properties  were 
sold  by  the  sheriff  and  bought  by  the  saidJL. ;  the  other  judgment  creditors  of 
the  Hamburgh  company  not  being  present  at  the  sale.  •  The  sheriff's  deed  to 
L.  was  absolute.  On  a  bill  filed  by  the  Hamburgh  company  and  P.,  it  was 
held  that  L.  was  a  trustee  for  the  Hamburgh  company  and  its  creditors,  both 
of  the  Hamburgh  property  and  of  the  Clinton  mine  farm. 


This  case  is  reported  ante  p.  249. 

S.  G.  Potts  and  P.  D.  Vroom,  for  the  appellants. 

E.  N.  Dickerson,  B.  Williamson  and  W.  Pennington,  for  the 
respondents. 

JOSEPH  F.  RANDOLPH,  Justice,  delivered  the  following 
opinion : 

The  Hamburgh  Manufacturing  Company  was  incorporated  in 
March,  eighteen  Hundred  and  thirty-six,  and  shortly  after  was 
organized,  became  seized  of  considerable  real  estate,  and  went 
into  operation  in  the  manufacture  of  iron ;  and  in  the  January 
following,  Edward  \V.  Pratt  became  the  owner,  by  purchase,  ex- 
change or  forfeiture,  of  nearly  all  of  the  stock  of  the  company, 
and  also  nineteen  hundred  and  eighty  out  of  twenty-five  hun- 
dred shares  in  the  Clinton  Manufacturing  Company,  another 
incorporation  for  the  manufacture  of  iron,  located  at  no  great 
distance  from  the  works  of  the  Hamburgh  company;  the  Clin- 
lou  company  being  the  owners,  amongst  other  real  estate,  of  a 
tract  of  land  of  about  one  hundred  and  fifty  acres,  on  which  was 
a  valuable  bed  of  hematite  ore,  about  forty  acres  and  a  half  of 
which  tract  the  company  sold  to  the  Hamburgh  company.  The 
two  companies  jointly  opened  a  mine  on  that  part  of  the  tract 
remaining  the  property  of  the  Clinton  company,  and  used  the  ore 
for  the  operations  of  both  companies. 

lu  less  than  two  years,  both  companies  became  largely  in- 
volved in  debt,  and  their  property  advertised  for  sale  by  the 
sheriff  of  Sussex  county,  by  virtue  of  sundry  executions  issued 
out  of  the  county  and  state  courts.  After  repeated  adjournments, 
to  enable  Pratt  or  the  companies  to  raise  the  money  and  pay  off 
the  executions,  the  sheriff  at  length  sold  the  property  df  the  two 
companies,  first  the  personal  and  afterwards  the  real  estate.  Ou 


€60         COURT  OF  ERRORS  AND  APPEALS. 

Edaall  v.  Hamburgh  Manuf.  Co. 

the  seventh  day  of  December,  eighteen  hundred  and  thirty- 
eight,  the  mine  tract  of  the  CJinton  company,  except  the  forty 
and  a  half  acres  sold  to  the  Hamburgh  company,  were  st.ruck 
off  to  the  defendant,  Elias  L'Hornmedieu,  for  the  sum  of  four 
thousand  and  forty-one  dollars,  he  being  the  highest  bidder;  and 
on  the  fourteenth  of  the  same  month,  all  the  real  estate,  includ- 
ing the  said  forty  and  a  half  acres  of  the  Plambutgh  compa- 
ny, were  struck  off  and  sold  to  the  said  defendant,  L'Homme- 
dieu,  for  two  hundred  and  eighty-five  dollars.  A  few  days  after 
the  sale,  viz.,  on  the  thirty-first  of  December  following,  L'Hom- 
medieu  executed  to  Pratt,  the  complainant,  a  lease  of  the  prem- 
ises, purchased  for  three  years,  at  a  yearly  rent  of  three  thousand 
dollars,  and  on  the  next  day.  being  the  first  of  January,  eighteen 
hundred  and  thirty-nine,  L'Hommedieu  entered  into  an  article 
of  agreement  with  Pratt  to  sell  him  the  premises  for  thirty  thou- 
sand dollars,  payable  in  installments.  During  the  residue  of  the 
winter  and  spring,  various  unsuccessful  efforts  seem  to  have 
been  made  by  the  parties  to  raise  money  and  put  the  works  in 
operation,  or  to  sell  the  premises;  at  length,  in  the  succeeding 
June,  Pratt  and  L'Hommedieu  started  to  go  to  New  York  to 
obtain  a  loan  of  money  or  a  purchaser  for  the  premises,  but  at 
Newark  Pratt  was  arrested  and  thrown  into  prison  for  debt, 
from  whence,  in  due  course  of  law,  he  was  discharged  as  an  in- 
solvent debtor,  making  David  Jones  and  Elias  Freeman  his 
assignees  under  the  statute,  and  at  a  subsequent  period,  he  mad^ 
to  Joseph  B.  Nones,  of  the  city  of  New  York,  a  special  assign- 
ment of  his  estate  and  interest;  and  these  three  persons,  claiming 
to  be  assignees,  together  with  Pratt  and  the  Hamburgh  Manu- 
facturing Company,  constitute  the  complainants  in  this  cause. 
Some  time  in  June,  after  Pratt  was  arrested,  the  defendant, 
L'Hommedieu,  claiming  under  the  sheriff's  deeds,  and  Edsall, 
one  of  the  principal  creditors  and  a  mortgagee  of  the  Ham- 
burgh company,  entered  into  possession  of  the  premises  in  ques- 
tion, and  since  then  have  continued  to  hold  the  same  and  to 
use  the  furnace  and  ore,  in  the  manufacture  of  iron,  to  a  very 
considerable  extent,  paying  off  some  of  the  creditors  of  the  Ham- 
burgh company,  buying  up  others  at  a  discount,  and  leaving 
others  unarranged,  one  or  two  of  which  have  been  transferred 
to  and  are  now  held  by  Pratt.  In  addition  to  L'Hommedieu 


JULY  TERM,  1848.  661 


Edsall  v.  Hamburgh  Manuf.  Co. 


and  Edsall,  the  bill  also  makes  the  several  creditors  interested 
in  the  Hamburgh  property  defendants,  all  of  whom,  except 
L'Hommedieu  and  Edsall  and  Daniel  Hafnes,  one  of  the  cred- 
itors, have  suffered  a  decree  pro  confesso  to  be  taken  against 
them.  Mr.  Haines  has  filed  a  separate  answer  and  the  other 
two  defendants  a  joint  one. 

The  complainants  charge  in  their  bill  that  L'Hommedien 
purchased  the  property  as  a  trustee,  in  the  first  place  to  pay  off 
the  encumbrances  and  the  claims  of  such  creditors  as  came  into 
a  certain  arrangement  entered  into  prior  to  the  sale,  and,  lastly, 
for  the  company,  to  whom  was  reserved  a  reversion  or  right  of 
redemption  on  payment  of  said  encumbrances  and  claims,  and  in 
pursuance  thereof  they  pray  an  account  to  be  taken  of  the  same, 
and  also  of  the  property  purchased, and  the  rents,  issues  and  profits 
thereof,  and  the  personal  property  of  the  complainants  received 
by  the  defendants,  and  that  the  deed  may  be  declared  a  trust 
deed  and  the  trusts  be  executed,  and  the  complainants  be  per- 
mitted to  redeem  on  payment  of  the  balance  due,  &c.  The 
defendants,  by  whom  may  be  understood  L'Hommedieu  and 
Edsall,  deny  the  trust  any  further  than  for  the  creditors  who 
came  into  the  arrangement  prior  to  the  sale,  and  insist  that 
none  of  the  complainants  have  any  interest  in  the  premises; 
whatever  they  had  being,  as  alleged,  cut  off  by  the  sheriff's  sale 
and  deeds. 

Xhe  onus  of  proof  is  on  the  complainants,  and  the  answer 
being  responsive  to  the  bill,  must  be  overcome  by  sufficient  and 
satisfactory  evidence.  The  arrangement  referred  to  as  made 
prior  to  the  sale,  consists  of  certain  articles  of  agreement  entered 
into  in  writing,  on  the  seventh  of  December,  eighteen  hundred 
and  thirty-eight,  by  L'Hommedieu,  Edsall  and  others,  being  a 
large  number  of  the  creditors  of  (lie  Hamburgh  company,  some 
of  whom  had  liens  and  some  not,  by  which  L'Hommedieu  was 
appointed  a  trustee,  to  purchase  in  at  the  sheriff's  sale  the  Ham- 
burgh property,  and  also  the  Clinton  property  whereon  is  the 
ore  bed,  and  to  raise  by  bond  and  mortgage  a  sufficient  amount 
of  money  to  pay  off  the  purchase  money,  the  liens  on  the  pro- 
perty and  the  creditors  who  came  into  the  arrangement,  and 
also  two  thousand  dollars  to  put  the  furnace  in  operation,  with 
power  also  to  lease  the  property  "  to  some  suitable  competent 


662         COURT  OF  ERRORS  AND  APPEALS. 

Edsull  v.  Hamburgh  Manuf.  Co. 

person,"  and  also,  if  he,  the  lessee,  desires  it,  "to  sell  to  him  the 
premises,  upon  his  securing  to  the  trustee  the  payment  of  the 
whole  costs  of  the  premises,  including  our  respective  claims,  with 
interest."  As  neither  Pratt  nor  the  Hamburgh  company  appear 
on  the  face  of  this  agreement  to  be  parties  thereto,  it  is  insisted 
by  the  defendants  that  this  writing  will  cut  off  any  prior  parol 
negotiations  if  there  were  any;  but  this  being  a  mere  arrange- 
ment of  the  creditors  themselves  to  screen  their  claims,  by  ap- 
pointing a  trustee  to  purchase  the  property  and  so  dispose  of  it 
as  would  answer  their  object,  it  was  not  proper  that  the  defend- 
ants in  execution,  in  which  light  Pratt  as  well  as  the  company 
may  be  considered  as  standing  in  this  court,  should  be  parties 
thereto,  particularly  as  the  agreement  did  not  embrace  all  the 
creditors.  If,  then,  the  complainants  have  any  claim  on  the  trustee 
or  trust  property,  we  must  look  beyond  the  article  of  agreement, 
which  could  in  no  way  bar  the  rights  of  those  who  could  not  in 
the  nature  of  things  be  a  party  to.it,  or  be  a  waiver  or  merger  of 
any  prior  agreement  made  with  or  by  them.  It  was  competent 
for  all  or  any  of  the  creditors  to  purchase  the  property,  person- 
ally or  by  an  agent  or  trustee,  and  take  the  same  exclusively  to 
themselves,  without  any  arrangement  with  any  of  the  com- 
plainants ;  but  the  question  is,  did  they  do  so?  or  was  there 
any  and  what  arrangement  made  with  Pratt  or  the  company? 
The  debts  of  the  company  are  estimated  at  about  thirty  thou- 
sand dollars;  but  the  executions  by  virtue  of  which  the  Ham- 
burgh property  was  sold,  amounted,  exclusive  of  interest  and 
costs,  to  less  than  seven  thousand  dollars ;  besides  these  there 
were  several  mortgages,  the  whole  encumbrances  amounting  to 
about  seventeen  thousand  dollars,  leaving  debts  of  from  ten  to 
thirteen  thousand  dollars  without  lien  or  security;  and  these 
creditors  as  well  indeed  as  the  judgment  creditors,  felt  some  fears 
for  the  safety  of  their  claims,  more  probably  from  the  magnitude 
of  the  property  and  the  difficulty  of  finding  a  purchaser  than 
from  a  deficiency  in  its  real  value.  We  accordingly  find  that 
whilst  Pratt  was  endeavoring  to  negotiate  a  loan,  the  creditor-s 
were  also  endeavoring  to  arrange  matters  by  securing  a  loan  or 
otherwise,  in  case  a  sale  became  inevitable,  so  as  to  secure  their 
inkTe.sts  respectively .  No  formal  agreement,  however,  appears 
to  have  been  entered  into  by  the  creditors  until  on  the  day  of 


JULY  TERM,  1818.  GG3 

Edsall  v.  Hamburgh  Manuf.  Co. 

sale,  the  seventh  of  December.  On  that  day,  we  learn  from  the 
evidence,  that  not  only  the  creditors  were  present,  but  Pratt  was 
there  also  with  Aaron  B.  Nones  as  a  friend  to  purchase  the 
property,  and  David  Ryerson  and  others,  who  felt  an  intereHt 
in  the  property,  and  of  those  concerned  therein.  Although  the 
property  had  been  advertised  for  sale  for  a  long  time  by  the 
sheriff,  and  repeatedly  adjourned,  yet  it  seems  Pratt  had  been 
unable  to  obtain  a  loan  of  money  to  prevent  the  sale;  yet  it 
is  not  probable  that  he  would  have  permitted  the  property  to 
•'•.ave  been  entirely  sold  from  him  if  he  could  prevent  it,  for  al- 
though the  extravagant  value  he  appears  to  have  set  on  the 
property,  as  well  as  on  the  Erie  lots  given  in  exchange  therefor, 
may  excite  a  smile,  yet  it  abundantly  appears  from  the  whole 
case  that  he  considered  it  of  sufficient  importance  to  him  to 
make  every  exertion  and  arrangement  in  his  power  to  prevent 
1m  interest  in  the  company  from  being  entirely  swept  away  by 
an  absolute  sale.  He  states  in  his  bill  that  he  attended  the  sale 
with  Nones,  as  the  agent  of  a  friend,  prepared  to  purchase  the 
property  if  ft  should  become  necessary.  This  allegation  does  not 
seem  to  be  clearly  denied  by  the  answer.  All  the  witnesses  agree 
that  Nones  was  at  the  sale,  and  many  of  them  understood  him 
as  there  in  the  character  of  a  purchaser.  He  says  himself,  in  his 
evidence,  that  he  went  there  for  his  brother,  John  B.  Nones,  to 
purchase  the  property  if  it  should  become  necessary,  and  that, 
tor  that  purpose,  he  took  with  him  about  eleven  or  twelve  thou- 
sand dollars,  and  had  authority  to  draw  for  as  much  more  as 
might  be  necessary — the  whole  amount  of  executions  on  which 
the  sale  of  the  Hamburgh  property  and  of  the  Clinton  Mine 
tract  together  amounting  to  less  than  eleven  thousand  dollars. 
It  also  appears  from  the  evidence  of  Joseph  M.  Brown  that 
Nones  took  money  with  him.  As  none  of  this  evidence  or  the 
complainants'  allegation  in  the  bill  is  answered  or  disproved,  we 
must  take  the  fact  as  satisfactorily  established,  that  Nones  was 
at  the  sale  to  purchase  the  property  for  the  benefit  of  Pratt,  and 
prepared  with  the  means  in  hand  to  do  it,  and  that  Pratt  knew 
of  it,  for  he  went  with  him  from  New  York.  Now  it  does  not 
appear  that  there  were  at  the  sale  any  others  prepared  for  the 
extremity  as  well  as  Pratt  and  Nones  were;  they,  therefore,  must 
have  had  the  advantage  of  the  creditors,  who  seem  to  have  been 


6Gi         COURT  OF  ERRORS  AND  APPEALS. 

Edsall  v.  Hamburgh  IVIanuf.  Co. 

well  aware  of  that  fact,  for  if  the  sale  had  gone  on,  from  all  that 
appears  in  the  testimony,  Pratt's  friend  might  have  purchased  the 
property  for  little  over  the  amount  of  the  encumbrances  and  have 
shut  out  all  the  claims  which  were  not  liens  on  the  premises; 
hence  the  anxiety  of  the  creditors  that  some  arrangement  be  made, 
and  the  various  efforts  from  time  to  time  to  make  combinations  or 
secure  loans  to  effect  their  object ;  hence  the  anxiety  of  Mr.  Ryer- 
son  and  others  to  secure  a  loan  to  protect  their  friends  and  the 
small  creditors.  If  Pratt  occupied  this  advantageous  position,  it 
is  not  probable  that  he  would  have  relinquished  it  without  some 
equivalent;  but  he  did  relinquish  it,  and  suffer  the  Hamburgh 
property  to  be  sold  for  two  hundred  and  eighty-five  dollars  in 
the  aggregate,  by  small  parcels,  and  for  small  sums.  Nones 
was  in  favor  of  the  arrangement,  and  made  no  bid  ;  Pettis  was 
also  stopped  from  bidding  by  the  same  consideration.  How  is 
this  ?  Neither  Pratt  or  the  company  have  any  part  or  lot  ex- 
pressly in  the  written  agreement  of  the  creditors,  yet  Pratt  was 
there  and  consulted  about  the  arrangement,  and  was  informed 
of  the  course  of  proceeding,  at  the  instance  of  Mr.  Haines,  lest 
he  might  frustrate  the  matter.  At  one  time  he  comes  out  from 
the  room  where  the  creditors  were  in  consultation,  with  a  written 
paper  in  his  hand,  which  he  said  were  propositions  to  him  ;  the 
witness  proves  a  copy,  which  looks  very  much  like  the  allega- 
tions in  the  bill,  but  as  the  original  was  not  accounted  for  in 
proof,  it  is  unnecessary  to  remark  on  the  contents  of  the  copy. 
The  creditors'  agreement  authorizes  a  lease,  and  although  Pratt 
is  not  named,  a  majority  agree  that  he  was  to  be  the  lessee  and 
also  the  purchaser  for  the  costs  and  interest ;  and  of  the  money 
which  the  trustee  was  authorized  to  loan,  two  thousand  dollars 
was  to  be  appropriated  to  put  the  furnace  in  blast,  and  this  be- 
fore the  creditors  without  liens  were  to  be  paid.  All  this  goes  to 
show  that  the  parties  did  not  consider  the  sale  as  absolute,  or  to 
be  of  very  long  duration,  but  rather  of  some  temporary  arrange- 
ment to  secure  the  creditors,  until  by  a  sale  or  loan  the  matter 
could  be  placed  on  a  permanent  footing.  A  few  days  after  the 
hale  the  trustee,  L'Hommedieu,  executes  the  K-ase  and  agreement 
to  sell  to  Pratt;  now  if  this  was  not  done  in  pursuance  of  a 
prior  agreement,  why  was  it  done?  The  creditors  had  no  great 
confidence  iu  Pratt,  they  had  indeed  but  little-  reason  to  have, 


JULY  TERM,  1848.  6G5 

Edsall  v.  Hamburgh  Manuf.  Co. 

why  should  there  have  been  a  loan  to  him  for  three  years,  with- 
out security,  and  a  bill  of  sale  for  the  property,  for  thirty  thou- 
sand dollars,  and  an  appropriation  of  two  thousand,  to  carry  on 
the  furnace?  These  facts  and  circumstances  lead,  irresistibly,  to 
the  conclusion  that  the  sale  was  not  considered,  by  the  parties, 
as  absolute  and  beyond  redemption,  but  that  Pratt,  either  for 
himself  or  the  company,  has  a  reversionary  right,  and  does  not 
stand  as  a  mere  ordinary  purchaser,  who  has  been  unable  to 
comply  with  his  agreement;  and  this  conclusion  is  supported,  I 
think,  by  the  weight  of  the  parol  evidence,  taken  in  connection 
with  the  circumstances.  David  Ryerson  says  there  seemed  to 
be  a  perfect  understanding  between  Pratt  and  the  creditors  ;  he 
was  consulted — was  to  have  the  management;  that  L'Homme- 
dieu  purchased  it  for  the  benefit  of  the  creditors,  "and  was  to 
hold  it  in  trust  for  them  until  the  debts  and  claims  of  tlie  com- 
pany were  settled."  There  certainly  is  some  discrepancy  in 
the  testimony — several  witnesses  testify  against  any  such  under- 
standing; but,  without  recurring  to  the  testimony  of  each  witness, 
I  cannot  but  conclude  that  the  decided  weight  of  testimony  is 
in  support  of  the  bill.  All  agree  that  L'Horamedieu  purchased 
as  a  trustee,  and  not  an  absolute  estate.  The  written  agreement 
makes  no  provision  for  a  surplus;  in  case  there  should  be  one, 
to  whom  does  it  go?  Not  to  the  creditors,  for  then  they  would 
be  paid  off;  not  to  the  trustee,  for  he  cannot  speculate  on  his 
trust.  It  must  be  by  clear  implication,  if  not  otherwise,  for  the 
complainants.  But  the  circumstances  go  to  sustain  the  bill  and 
show  there  must  have  been  an  agreement.  Whilst  the  lease 
has  nearly  three  years  to  run,  and,  before  the  first  payment  on 
the  article  of  sale  becomes  due,  the  defendants,  L'Hommedieu, 
as  trustee,  and  Edsall,  as  creditor  and  mortgagee,  take  posses- 
sion of  the  premises  and  carry  on  the  works  to  the  present  time. 
Walker  does  not  seem  to  have  had  authority  for  delivering  up 
the  premises,  and  the  mere  verbal  statement  of  Pratt,  whilst  in 
prison,  with  all  the  papers  remaining  open  and  executed,  can 
hardly  be  taken  as  a  relinquishraent.  I  think,  after  a  review 
of  all  the  facts,  that  that  part  of  the  Chancellor's  decree  direct- 
ing an  account  to  be  taken  of  the  Hamburgh  property,  should 
be  affirmed. 

Another  question  in  the  case  remains  to  be  disposed  of,  arising 

VOL.  i.  2  T 


666    COURT  OF  ERRORS  AND  APPEALS. 

Edsall  v.  Hamburgh  Manuf.  Co. 

on  that  part  of  the  decree  which  determines  that  the  complain- 
ants are  not  entitled  to  relief  as  to  the  Clinton  mine  tract, 
because  the  sale  was  fraudulent.  I  have  been  unable  to  come 
to  the  same  conclusion,  either  as  to  the  decree  or  the  reasons 
therefor.  This  tract  of  land  belonging  to  the  Clinton  company 
was  regularly  advertised  and  sold  by  the  sheriff  of  Sussex,  by 
virtue  of  two  executions  in  his  hands,  and  L'Hommedieu  being 
the  highest  bidder,  it  was  struck  off  to  him  accordingly.  It  is 
true,  Mr.  Edsall  had  a  mortgage  on  the  premises,  younger  than 
the  executions,  and  was  at  the  sale  to  protect  his  rights,  by  pur- 
chase or  otherwise,  and  I  can  see  no  fraud  or  impropriety  in  the 
Hamburgh  creditors  agreeing  that  their  trustee  should  purchase 
the  tract  upon  the  best  terms  that  it  could  be  obtained,  and,  if 
necessary  for  that  purpose,  to  agree  to  payoff  Edsall's  mortgage, 
though  younger  than  the  executions  by  virtue  of  which  the 
sale  took  place.  This  was  doing  no  injury  to  the  Clinton  com- 
pany or  their  creditors.  The  sale,  then,  being  a  bona  fide  sale 
to  the  highest  bidder,  is  neither  fraudulent  or  void,  but  is  good 
and  valid  against  the  Clinton  company  arid  its  creditors.  Nor 
is  there  anything  in  the  agreement  between  Pratt  and  the 
Hamburgh  creditors,  or  between  them  and  the  defendants,  or 
either  of  them,  that  can  be  considered  fraudulent.  If  L'Hom- 
medieu had  not  purchased  it,  of  course  Edsall  would  have  done 
so  to  secure  his  mortgage,  and,  in  either  case,  the  general  credit- 
ors of  the  Clinton  company  would  have  been  shut  out  from  any 
claim  on  the  property;  and,  if  all  the  interest  of  the  Clinton 
company  and  their  creditors  was  disposed  of  at  the  sheriff's  sale, 
they  had  no  right  to  be  made  parties  to  the  present  suit,  and,  of 
course,  the  bill  cannot  be  dismissed,  either  for  that  cause  or  the 
alleged  fraud.  The  next  inquiry  is,  if  the  sale  was  good  and 
valid,  in  what  character,  and  for  what  purpose  did  L'Hommo- 
dieu  purchase?  Why,  clearly,  as  trustee  and  for  the  benefit  of 
the  trust  generally.  The  very  first  clause  of  the  article  of  agree- 
ment of  December  7th,  1838,  amongst  the  Hamburgh  creditors, 
states,  "And  whereas,  for  the  purpose  of  endeavoring  to  secure 
ourselves,  we  deem  it  advisable  to  purchase  the  said  real  estate — 
i.  e.,  the  Hamburgh  property — and  also  certain  real  estate  of 
the  Clinton  Manufacturing  Company,  situate,  &c.f  whereon  is 
an  ore  bed,  advertised  by  the  said  sheriff,  therefore,  &c.,  we 


JULY  .TERM,  1848.  667 

Edsiill  v.  Hamburgh  Manuf.  Co. 

do  hereby  constitute  Elias  L'Homraedieu  our  agent  and  trustee, 
in  his  own  name,  and  for  his  own  behalf  and  use,  to  purchase 
the  said  properties"  &c.  Either,  then,  we  must  agree  with  the 
Chancellor  and  declare  the  sale  fraudulent  and  void,  or  if  good, 
we  must  decree  that  the  purchase  was  by  the  defendant  in  trust 
for  others.  The  disagreement  to  the  first  position  necessarily 
affirms  the  second.  If  L'Hommedieu  then  purchased  and  held 
the  Clinton  property  as  a  trustee,  for  whom  was  the  trust? 
There  can  be  little  doubt  in  concluding  that  it  was  for  the  same 
persons  for  whom  he  purchased  in  and  held  the  Hamburgh 
property;  and  if  we  concur  with  the  Chancellor  in  saying  that 
that  was  subject  to  a  general  trust  for  the  complainants,  so  we 
must  say  in  regard  to  the  mine  tract,  otherwise  we  come  to  this 
strange  conclusion,  that  the  complainants  are  entitled  to  the  re- 
demption of  the  Hamburgh  property  after  paying  the  debts  due 
to  the  creditors,  together  with  the  expenses,  &c. ;  but  as  to  the 
Clinton  mine  tract,  although  purchased  and  held  as  a  trust,  yet 
neither  the  complainants  or  the  creditors  who  appointed  L'Hom- 
medieu agent  and  trustee,  can  have  any  interest  in  or  benefit 
from  it ;  the  creditors  cannot,  because  they  will  be  all  paid  off 
by  the  redemption,  and  of  course  they  cannot  be  permitted  to 
speculate  on  the  trust  property  when  there  is  a  general  trust  or 
right  of  redemption  behind  them  ;  and  the  complainants  cannot 
by  our  decree;  so  that  between  the  two,  the  defendants  would 
hold  the  property  absolutely  free  and  clear  of  either  trust ;  a 
conclusion,  I  apprehend,  which  no  one  would  be  willing  to 
adopt.  And  although  this  is  a  mere  bill  for  the  redemption  of 
die  Hamburgh  property,  I  see  no  difficulty  in  sustaining  and 
carrying  out  in  the  present  suit  the  trust  in  regard  to  the  Clin- 
ton mine  tract.  The  Hamburgh  property  is  large  and  valuable, 
but  its  value  very  much  depends  on  the  ore  to  be  obtained  from 
the  Clinton  tract.  The  whole  was  about  to  be  sold  at  sheriffs 
sale;  certain  creditors  and  the  complainants  agree  that  the  sale 
shall  go  on,  and  that  the  defendant,  L'Hommedieu.  shall  pur- 
chase it  for  their 'benefit,  not  only  the  iron  works  and  property 
attached  to  them,  but  also  the  mine  tract.  The  purchase  is 
made  accordingly,  and  when  the  defendants  refuse  to  execute 
the  trust  with  the  complainants,  we  deem  that  the  trust  is  valid, 
and  that  defendants  shall  give  effect  to  the  whole  trust — that  is, 


668         COURT  OF  ERRORS  AND  APPEALS. 

Edsall  v.  Hamburgh  Manuf.  Co. 

although  the  complainants  have  no  right  of  redemption  in  the 
mine  tract,  yet,  before  they  pay  anything  to  redeem  the  prop- 
erty, they  have  a  right  to  a  strict  account  of  all  the  trust  prop- 
erty, and  the  rents,  issues,  and  profits  thereof,  and  a  sale  of  the 
mine  tract,  and  that  the  balance  arising  therefrom,  after  paying 
all  the  claims  on  the  tract  itself,  including  EdsalFs  mortgage — 
for  that  was  to  be  paid  by  the  agreement — should  go  to  liquidate 
the  claims  against  the  Hamburgh  company,  embraced  in  the 
trust,  and  thus  lessen  the  amount  to  be  paid  by  complainants 
for  the  redemption.  This  conclusion  results,  necessarily,  from 
the  transaction,  the  whole  property  being  bona  fide  sold,  and 
bought  by  the  defendant,  in  trust,  to  pay  off  certain  creditors 
and  claims,  and,  ultimately,  after  these  claims  were  discharged, 
to  be  held  for  the  benefit  of  the  complainants.  If  they  come 
forward  and  pay  off  all  those  claims,  they  have  a  right  to  the 
property,  and,  whether  mine  tract  or  Hamburgh  estate,  the 
court  must  consider  them  held  in  trust  for  their  benefit.  It 
must  be  so,  unless  we  conclude  the  sale  was  fraudulent  and  void. 
I  think  that  this  part  of  the  decree  should  be  reversed,  and 
neither  party  allowed  costs  in  this  court. 

WHITEHEAD  and  CARPENTER,  Justices,  and  PORTER, 
SCHENCK,  and  SPENCER,  Judges,  concurred  in  this  opinion. 

NEVIUB,  Justice,  voted  for  affirming  the  whole  decree. 

Decree  affirmed,  as  to  the  Hamburgh  property,  and  reversed 
as  to  the  Clinton  mine  farm,  this,  also,  as  iveli  as  the  Hamburgh 
property,  being  decreed  to  be  held  by  "U  iv  trust  for  th*  Ham- 
burgh company  and  its  creditors. 


INDEX. 


ABATEMENT  (OF  LEGACY.) 
Vide  WILL,  4. 

TABSENCE. 

On  bill  stating  that  J.  B.  S.  left  the 
state  more  than  seven  years  before, 
and  had  not  been  heard  from,  and 
founded  on  the  presumption  of  hi? 
death  thence  arising,  and  answer 
admitting  the  absence,  but  denying 
that  he  had  not  been  heard  from, 
and  stating  that  the  defendants  are 
informed  and  believe  that  he  had 
been  heard  from,  and  replication — 
lii-ld,  that  unless  the  defendants  made 
proof  that  J.  B.  S.  was  alive  within 
the  seven  years,  the  presumption  of 
his  death  arising  at  the  expiration 
of  the  seven  years  stood.  Smith  v. 
Ex'rt  of  Smith,  484 

ACCOUNT. 

Vide  PREROGATIVE  COURT,  3,  6. 
SPECIFIC  PERFORMANCE,  3. 
EXECUTORS  AND  ADMINISTRA- 
TORS, 1,  2,  3,  4. 

ADMINISTRATION  BOND. 
Vide  PREROGATIVE  COURT,  1,  2. 

ADMINISTRATORS. 

Vide  EXECUTORS  AND  ADMINISTRA- 
TORS. 

ADVANCEMENT. 
Vide  PREROGATIVE  COURT,  4,  5. 


AFFIDAVITS. 

On  motion  on  bill  and  notice  for  an 
injunction  and  the  appointment  of  a 
receiver,  the  affidavit  of  the  defend- 
ant may  be  read  in  opposition. 
Kean  v.  Colt,  365 

Vide  AMENDMENT,  3. 


AGREEMENT. 

Vide  SPECIFIC  PERFORMANCE,  4, 5,  6, 
7,  8,  9,  11. 


ALIMONY. 

1.  Alimony    pending    the    unit,    and 
money  to  defray  the  expenses  of  it, 
allowed  on  a  bill  by  the  wife  against 
the  husband  for  support  and  main- 
tenance, charging  that  he  had  aban- 
doned her  and  refused  to  maintain 
and   provide  for  her.     Palerson  v. 
Patcrson,  389 

2.  On  bill   by  a  wife  against  her  hus- 
band for  alimony  and  maintenance, 
and  for  the  support  and  maintenance 
of  their  child,  and  answer  put  in  by 
the   husband,  and  petition  filed  by 
the  complainant  for  a  proper  allow- 
ance until  the  final  termination  of 
the  suit,  and  for  an  order  directing 
the  defendant  to  pay  a  proper  Bum 
for  counsel  fees  and   to  defray  the 
expenses    of    the    suit,    the    court, 
under  the  circumstances  of  the  case, 
made  an  order  directing  the  husband 
to  pay  $2.50  per  week  towards  the 
support  of  the  child  and  the  com- 
plainant, while  she  should  keep  the 
child,  until  the  further  order  of  the 
court ;    and    made   no   order   as   to 
counsel  fees  and  expense*  of  the  suit, 

v.  BallaiUne,  471 


609 


670 


INDEX. 


AMENDMENT. 

l.An  application  for  leave  to  amend 
an  answer,  or  file  a  supplemental 
answer  after  depositions  have  been 
taken,  should  be  listened  to  with 
distrust.  Bell  v.  Hall,  49 

2.  The  defendant  had  answered  that  he 
did  not  know  of  a  certain  agreement 
until  after  the  assignment  to  him  of 
a  certain  judgment  and  execution. 
The  execution  had  been  levied  on 
the  goods  of  the  defendant  in  the 
execution.    The  defendant   in    this 
court,  who  had  put  in  his  answer, 
had   released   the  goods  levied   on 
from  the  lien  of  the  execution.     He 
moved    for    leave    to    amend     his 
answer  by  stating  that  he  did  not 
know  of  the  agreement  until  after 
he  had  executed  the  release,  or  for 
leave  to  file  a  supplemental  answer 
to  make  that  allegation.  The  motion 
was  denied.  Ib. 

3.  What  the  affidavit  on  which  an  ap- 
plication   for  leave    to   amend   an 
answer  or  file  a  supplemental  bill 
should  in  general  state.  Ib. 


ANSWER. 
Vide  PLEADINGS,  III. 

APPEAL. 

1.  An  appeal  lies  from  an  order  dis- 
solving an   injunction.     Ckegary  v. 
Scojidd,  525 

2.  The  appeal  itself  does  not  stay  pro- 
ceedings   on    the    order    appealed 
from.  Ib. 

3.  After  appeal,  the  Court  of   Errors 
and   Appeals  may  stay  proceedings 
on   the  order  appealed   from ;  and 
this  power  extends  to  orders  dissolv- 
ing injunctions.  Ib. 

4.  An  order  of  the  Court  of  Errors  and 
Appeals  slaying  proceedings  under 
an  order  dissolving  an  injunction, 
which  last  order  was  appealed  from, 
was,  under  the  circumstances  of  the 
case,  vacated  at  the  next  subsequent 
term.  Ib 

5.  No  appeal  lies  from  the  decree  of 
the  Ordinary  or    Burrogate-generai 


in  the  matter  of  the  assignment  of 
dower.    Anthony  v.  Anthony,       627 

.On  bill  filed,  the  complainant  had 
obtained  an  injunction  restraining 
the  defendant  from  aliening  or  en- 
cumbering certain  real  estate  which 
was  in  controversy  between  the  com- 
plainant and  defendant  and  from 
collecting  or  receiving  the  rents ; 
and  had  also  obtained  an  order  ap- 
pointing a  receiver  of  the  rents  and 
profits.  Afterwards,  the  Chancellor 
made  an  order  authorizing  the  re- 
ceiver, instead  of  collecting  the 
rents  himself,  to  permit  the  defend- 
ant, to  do  it  for  him,'  until  the  further 
order  of  the  court,  upon  the  defend- 
ant's giving  bond  with  satisfactory 
security  for  the  payment  to  the  re- 
ceiver of  the  rents  received  by  him. 
Held  that  such  order  could  not  be 
appealed  from.  Oarr  v.  Hitt,  639 


ASSETS. 

1.  Character  of  assets  whether  legal  or 
equitable.     Corrigan  v.  The  Trenton 
Delaware  Falls  Company,  232 

2.  Distribution  of  assets.  Ib 

Vide  HEIRS  AND  DEVISEES,  1. 

ASSIGNMENT  AND  ASSIGNEE. 

Vide  CORPORATIONS,  8,  9,  10. 
MORTGAGE,  3. 
SPECIFIC  PERFORMANCE,  3. 

ASSIGNMENT  (FOR  BENEFIT 
OF  CREDITORS.) 

Vide  MORTGAGE,  1. 

ATTACHMENT. 
Vide  MORTGAGE,  1. 

B. 

BILL. 
Vide  PLEADINGS. 


INDEX. 


671 


C. 
CONTRACT. 

Vidt  AGREEMENT. 

CORPORATIONS. 

l.The  impression  of  a  distinctive 
corporation  seal  on  an  instrument 
calling  for  ike  seal  of  tlie  corporation 
held  to  be  a  Heal.  C'orrigtm  v.  The 
Tientoii  Delaware  Fall*  Company, 

52 

2.  A  corporation  being  embarrassed  in 
its  circumstances,  six  of  the  stock- 
holders, two  of  them  being  also  di- 
rectors, entered  into  an  agreement, 
that  at  any  sale  that  might  be  made 
of  the  property  of  the  company, 
•either  on  execution  or  by  the  direc- 
tion of  the  company,  the  property 
should  be  bought  by  two  of  the 
stockholders  who  were  parties  to  the 
agreement,  on  the  best  terms  possi- 
ble, and  that  the  property,  when  so 
purchased,  should  be  held  by  them 
in  trust,  half  f«r  themselves,  and 
half  for  the  other  parties  to  thej 
agreement,  each  party  to  the  agree- 
ment to  pay,  pro  raid,,  for  ihe  pur-! 
•chase  of  the  property,  according  to 
his  interest  in  the  same  to  be  there- 
after declared.  Two  days  after  the 
making  of  this  agreement,  the  two 
directors  who  were  parties  to  it  and 
two  other  directors  of  the  company, 
by  an  in.strumentexecuted  tinder  their 
individual  hands  and  seals,  con- 
veyed to  the  stockholders,  who,  by 
the  said  agreement,  were  to  be  the 
purchasers,  for  a  money  considera- 
tion acknowledged  in  the  instrument 
to  have  been  received,  all  the  per- 
sonal property  of  the  company.  Oil 
the  day  after  this  last  writiug  was! 
made,  a  judgment  was  confessed  by! 
the  company,  and  a  _/i.  /a.  issued 
thereon  and  levied  on  all  the  pro- 
perly of  the  company.  A  few  days 
afterwards,  in  pursuaoce  of  a  reso- 
lution passed  by  the  votes  of  one  of, 
the  directors  who  was  a  party  to  the: 
said  agreement,  and  two  other  direc-! 
tors  of  the  company,  the  president! 
of  the  company  executed  atid  deliv- 
ered to  the  two  stockholders,  who, 
by  the  agreement,  were  to  buy  the 
property,  a  deed  of  all  the  real  es- 
tate of  the  company,  for  a  money 
consideration  therein  acknowledged 


to  have  been  received,  subject  to  the 
said  confessed  judgment.  Tne  two 
stockholders,  to  whom  all  the  pro- 
perty of  the  company  was  thus  con- 
veyed, then  procure  an  assignment 
of  this  judgment,  and  cause  the 
sheriff  to  advertise  fur  sale,  by  virtue 
of  the  execution  issued  thereon,  all 
the  property  of  the  company.  On  a 
bill  filed  by  a  subsequent  judgment 
creditor  of  the  company,  an  injunc- 
tion was  allowed  restraining  the 
sale.  An  answer  was  put  in,  stating 
that  it  was  a  part  of  the  arrange- 
ment, that  the  consideration  money 
for  the  property  should  be  paid 
and  applied  directly  on  account  of 
the  company  to  the  creditors  thereof, 
and  that  they,  the  two  stockholders 
to  whom  the  property  was  conveyed, 
should  pay,  out  of  the  net  earnings 
of  the  half  held  by  them  in  trust 
for  the  other  parties  to  the  arrange- 
ment, after  paying  the  costs  of  com- 
pleting and  putting  the  works  in 
operation,  a  further  sum  sufficient 
to  satisfy  the  remaining  debts  of  the 
company;  and  that  they  should  put 
the  machinery  in  operation,  and 
make  it  productive  as  soon  as  cir- 
cumstances would  permit.  A  mo- 
tion to  dissolve  the  injunction  was 
denied.  Smith  v.  Loomia,  60 

.  The  act  incorporating  "  The  Sotner- 
ville  Manufacturing  Company" 
provides  that  the  stock,  property 
and  concerns  of  the  company  shall 
be  managed  and  conducted  by  five 
directors,  one  of  whom  shall  be 
president ;  and  that  the  president 
and  directors,  or  a  majority  of  them, 
shall  and  may  appoint  such  officers, 
superintendents  and  agents  as  they 
may  think  proper;  and  that  the 
president  and  directors,  or  a  major- 
ity of  them,  shall  have  power  to 
call  in  installments  on  the  stock. 
Can  two  of  three  directors  assembled 
make  a  mortgage  of  the  lands  of  the 
company  ?  Can  two  of  three  direc- 
tors assembled  make  a  mortgage  to 
the  third  ?  Van,  Hook  v.  The  Som- 
eroille  Manufacturing  Company,  137 

.The  book  of  minute*  of  a  corpora- 
tion is  only  prima  facie  evidence  of 
the  coriectnens  of  the  entries  made 
in  it.  The  appearance  of  the  min- 
utes may,  of  itself,  rai*e  so  wlrpng  a 
suspicion  against  the  regularity  of 


672 


INDEX. 


the  proceedings,  that  no  weight  wili 
be  given  to  them.  Ib, 

6.  The  corporate  seal  may  be  affixec 
by  a  less  number  of  directors  than  is 
necessary  to  constitute  a  board,  if  il 
be  done  by  the  direction  of  a  legal 
board.  Ib 

6.  If,  on  a  notice  to  all  the  directors 
a  meeting  be  held,  at  which  some  of 
them  do  not  attend,  and  an  adjourn- 
ment is  made  to  a  subsequent  day, 
is  the   meeting  on    the   subsequent 
day  a  meeting  on  due  notice  to  all 
the  directors  ?  Ib. 

7.  The  consent  of  a  director  not  sitting 
in  a  legal  board  is  nugatory.         Ib. 

8.  If  a  mortgage  be  given,  even  by  a 
competent  board  of  directors,  to  one 
of  their  number  who  is  the  financial 
agent  of  the  company,  to  enable  him 
to  raise  money  for  the  company,  on 
his   representation  that  the  money 
needed  by  the  company  could  not 
be  raised  on  the  bond  and  mortgage 
of  the  company  given   dire'ctly   to 
any  lender ;  or  after  failure  to  raise 
money  for  the  company,  and  on  his 
representation   that  lie  could  raise 
the  money  on  a  bond  and  mortgage 
of  the  company  executed  to  him,  by 
an    assignment    of   it,   allowing    a 
greater  rale  of  interest  than  the  le- 
gal  interest,  it   would  be   a    fraud 
against  the  company  to  enforce  the 
mortgage  against  them  as  a   mort- 
gage to  him  for  his  own   use  and 
benefit ;  and  if  he  attempt  to  do  so, 
he  will  be  held  to  have  procured  it 
by  fraud.  Ib. 

9.  In  general,  fraud  in  the  obligee  in 
obtaining  a  bond  is  a  good  defence 
against    an    assignee   of  the    bond, 
though  he  be  a   bona  fide  purchaser 
of  it  without  notice  of   the  fraud. 
But  it  was  held  that  a  bona  fide  as- 
signee without  notice  of  a  bond  and 
mortgage  given  under  the  circum- 
stances, and    for   the   object    before 
stated,  might   enforce  them  against 
the  company.  Ib. 

10.  Certain  certificates  of  the  director 
who   was  president,  one  signed  by 
him  as  an   individual,  stating  that 
ihc  bond  and  mortgag    was  executed 
i>y  him  as  president,  by  order  of  the 
board,  "as  said  amount  was  due  to 
ibi;   obligee   as   agent  of  the  com- 
pany," and  the  other  signed  by  him 


as  president,  stating  that  the  board 
having  examined  the  account  of  the 
obligee  against  the  company,  did 
pass  the  same  and  acknowledge  a 
balance  due  the  obligee  of  $9638.17; 
and  a  copy,  signed  by  the  secretary 
of  the  company,  of  what  purported 
to  be  a  resolution  of  the  board,  that 
the  bond  and  mortgage  was  a  legal 
and  subsisting  liability  of  the  com- 
pany, and  that  they  had  no  defence 
to  make  to  the  same,  which  writings 
were  procured  by  the  obligee  to  aid 
him,  as  he  said,  in  negotiating  the 
bond  and  mortgage,  were  exhibited 
on  the  part  of  the  complainant,  to 
show  good  faith  in  taking  the  as- 
signment. Before  the  complainant 
took  the  assignment,  he  was  told  by 
the  president  that  he,  the  president, 
considered  the  property  would  be 
worth  $20,000  when  in  operation  ; 
that  if  he,  the  complainant,  had  the 
money  to  spare  he  could  not  put  it 
out  more  safely ;  that  they  were 
anxious  to  get  the  money  and  have 
the  works  in  operation,  and  that  if 
they  could  obtain  the  money  on  the 
bond  and  morlgage,  they  would  be 
able  to  put  the  works  in  operation. 
After  this,  the  complainant  took  the 
assignment  of  the  bond  and  mort- 
gage, and  in  exchange,  or  alleged 
exchange  therefor,  made  a  deed  of 
leasehold  property  in  New  York  to 
a  son  of  the  obligee ;  and  the  com- 
plainant produced  in  evidence  a  cer- 
tified copy  of  a  mortgage  made  by 
the  son  to  one  Morgan,  dated  Au- 
gust 23d,  1842.  There  was  no  evi- 
dence given  to  show  when  the  as- 
signment to  the  complainant  was 
delivered,  or  the  deed  to  the  son ; 
whether  on  the  day  the  mortgage 
was  made  by  the  son  or  not ;  but  it 
appeared  that  an  assignment  of  the 
bond  and  mortgage  was  left  by  the 
obligee  in  the  office  of  the  clerk  of 
Somerset,  on  the  1st  of  August, 
1842,  and  recorded  after  the  9lh  of 
August,  1842.  No  account  was 
given  of  the  morlgage  made  by  the 
son,  except  that  the  witness  of  the 
complainant  who  produced  the  cer- 
tified copy  of  it,  stated  that  he  had 
seen  it  in  New  York  the  morning 
of  the  day  of  his  examination,  in 
the  hands  of  one  Kdward  P.  Clark, 
and  that  "he  could  not  get  the 
original  out  of  the  office;  they  re- 
fused to  let  him  have  it."  Held  that 
the  complainant  could  not  be  con- 
sidered a  bona  fide  purchaser  of  the 


INDEX. 


673 


bond  and  mortgage  for  consideration  2 
paid  ;  and  held  further,  that  the  in- 
formal ion  he  received  from  the 
president  was  sufficient  notice  to 
overcome  the  evidence  offered  of 
ln>itu  jiili-x,  if  that  had  been  sufficient 


to  show  it. 


Ib. 


Vide  FRAUDS  BY  INCORPORATED 
COMPANIES. 


COSTS. 

On  bill  by  a  wife,  by  her  next  friend, 
against  her  husband  for  alimony 
and  maintenance,  a  motion  on  the 
part  of  the  defendant  that  the  com- 
plainant file  security  for  costs  was 
denied.  Ballentiiie  v.  Bailentine,  519 

Vide  SET-OFF,  1. 


COURT  OF  ERRORS  AND  AP- 
PEALS. 

Vide  APPEAL,  1-5. 

CREDITORS'  BILL. 
Vide  SET-OFF,  1. 

D. 
DECREE. 

Vide  EVIDENCE,  3. 
PRACTICE,  4. 

DEED. 

Vide  LAND,  1. 

DELIVERY,  1,  2,  3. 
EXKCUTOKS    AND  ADMINISTRA' 

TUKS,  6. 

DELIVERY. 

l.The  posnession  of  a  mortgage,  ob- 
tained from  the  clerk's  office  by  the 
jierson  named  therein  as  mortgagee, 
without  the  consent  of  the  mortga- 
gor, and  after  he  had  refused  to  de- 
liver the  bond  to  secure  which  the 
mortgage  was  given,  is  no  evidence 
of  the  delivery  of  the  mortgage. 
The  Commercial  Bank  of  New  Jersey 
V.  Eecklcss, 


.  To  constitute  the  delivery  of  a  deed, 
the  grantor  must  part  not  only  with 
the  possession,  but  with  the  control 
of  it,  and  deprive  himself  of  the 
right  to  recall  it.  1*1. 

.  To  make  the  leaving  of  a  deed  by 
the  grantor  with  the  clerk  for  regis- 
try, and  the  registration  thereof,  a 
good  delivery  to  the  grantee,  it  must 
be  left  for  the  grantee,  or  with  such 
directions  from  the  grantor  as  to 
amount  to  a  delivery,  and  authorize 
the  grantee  to  take  it  from  the 
clerk.  Ib. 

.  Allegation  of  the  delivery  of  a  bond 
and  mortgage  not  sustained  by  evi- 
dence. Ib. 

.  The  possession  by  a  mortgagee  of  a 
mortgage  executed  and  recorded  is, 
in  itself,  cogent  evidence  of  delivery. 
Commercial  Bank  v.  Reckless,  650 

.The  answer  of  a  mortgagor  to  a  bill 
ofcforeclosure,  denying  the  delivery 
of  the  mortgage  is  not,  in  itself,  suffi- 
cient to  overcome  the  presumption 
of  delivery  arising  from  the  posses- 
sion of  the  mortgage  by  the  mortga- 
gee duly  executed,  acknowledged 
and  recorded.  Jb. 

7.  What  evidence  held  sufficient  of  the 
delivery  of  a  mortgage,  tnough  the 
bond  to  secure  which  the  mortgage 
was  given,  was  in  the  possession  of 
the  obligor.  Jb. 

Vide  HUSBAND  AND  WIFE,  5. 


DEVASTAVIT. 
Vide  LEGACY,  2,  3, 

DEVISE. 

Vide  PREROGATIVE  COURT,  6. 
WILL. 

DEVISEES. 
Vide  HEIRS  AND  DEVISEES. 

DISTRIBUTION. 
Vide  PREROGATIVE  COURT,  3. 


674 


INDEX. 


DOWER. 
Vide  WILL,  1,  2. 

E. 

ENROLLMENT. 
Vide  PRACTICE,  4. 

ESTATE. 
Vide  TRUST  AND  TRUSTEE,  2.  3. 

EVIDENCE. 

1.  Parties    are    confined    to   the    case 
made   by  the   pleadings ;   and   evi- 
dence to  facts  not  put  in  issue  cannot 
be  read.     Ex'r  of  Cavalier  v.   Huff- 
man, 354 

2.  Testimony   in    disproof   of    a  fact 
confessed   by  the  pleadings  cannot 
be  considered.  Ib. 

3.  A  decree  against  executors,  in  a  suit 
against  them,  is  no  evidence  in   a 
subsequent  suit  against  the  devisees 
of  the  existence  of  the  debt.  Adm'rs 
of  Hazen  v.  The  Heirs  and  Devisees 
of  Tillman,  363 

4.  What  proof  held  satisfactory  of  the 
existence,  genuineness  and  loss  of  a 
receipt  or  acquittance  from   a  de- 
ceased person.    Williamson  v.  Adm'rs 
of  Johnson,  537 

5.  It  is  not  competent  to  show  by  parol 
that  at  the  time  of  executing  a  bond, 
the  obligee  agreed  that  the  obligor 
should  not  be  personally  liable,  but 
that  the  obligee  would  look  for  pay- 
ment to  the  mortgage  given  to  secure 
the  bond.     Chetwood  v.  Brittan,    628 

Vide  PLEADINGS,  II.,  11. 

HUSBAND  AND  WIFE,  3. 

EXECUTORS  AND  ADMINIS- 
TRATORS. 

1.  A  note  given  to  a  lestator  in  his  life- 
time, by  one  who  was  appointed  a 
co-executor  of  his  will,  was  invento- 
ried by  the  two  executors  as  a  patt 
of  the  aasets  of  the  estate  ;  and  in  a 


joint  account  settled  by  the  execu- 
tors in  the  Orphans'  Court,  they 
charged  themselves  with  casli  re- 
ceived on  the  said  note  in  full. 
Held,  in  the  absence  of  any  explana- 
tion, that  both  executors  were  liable 
to  the  residuary  legatees  for  the 
whole  balance  struck  against  them 
in  the  said  joint  account  Wilson 
v.  Ex'rs  of  Fisher,  493 

2.  A  note  given  by  one  of  the  said  ex- 
ecutors to  a  legatee,  on  account  of  his 
share  of  the  residue,  which  note  was 
not  paid,  but  whicli  the  other  exec- 
utor set  up  as  a  payment,  was  held 
to  be  no  payment.  Ib. 

3.  One    of   the    executors    paid    four 
shares  in   full,  to   four  of  five  re- 
siduary legatees,  and  a  part  of  the 
fifth  share  to  the  other  legatee  ;  and 
on  a  bill  filed  by  the  latter  against 
the  executors  for  the  residue  of  his 
share,  set  up  that  he  had  paid  out  all 
he  had  in  his  hands  of  the  balance 
found  by  the  said  joint  account,  and 
that    the   other  executor,  who    had 
since  become  bankrupt,  had  received 
enough    of  the  said    balance  to  pay 
what  remained  due  the  complainant. 
Is  this  a  defence  ?  Ib. 

[.  It  is  not  necessary  to  tender  lo  exec- 
utors a  refunding  bond  before  filing 
a  bill  for  a  legacy.  1  b. 

5.J.  C.  died  March  15th,  1833,  leaving 
a  will  by  which  he  ordered  all  his 
debts  to  be  paid,  and  gave  and  be- 
queathed to  his  widow  all  his  estate, 
real  and  personal,  during  her  natu- 
ral life  or  widowhood,  and  appointed 
her  sole  executrix  thereof;  the  will 
containing  no  devise  or  bequest  of 
the  estate  after  her  death.  The  tes- 
tator left  a  grandson  his  only  heir-at- 
law.  The  widow  and  the  grandson 
and  his  family  occupied  the  dwell- 
ing-house and  lands,  and  converted 
the  personal  property  to  their  own 
use.  On  the  24th  of  July,  1834,  the  • 
widow  and  the  grandson  and  his 
wife  conveyed  all  the  real  estate  to 
T.  B.  8.  On  'bill  filed  by  a  creditor 
of  the  testator  attacking  the  bona 
fides  of  the  sale,  and  the  answer  and 
proofs  in  the  cause,  the  deed  was 
declared  void,  and  the  lands  held 
liable  for  the  complainant's  debt. 
Ex'r  of  Cooper  v.  Cooper,  498 


INDEX. 


675 


6.  An  executor  with  power  to  sell  land 
exposed  the  land  for  sale  at  public 
vendue  on  the  llth  of  March,  1789, 
and  no  person  bidding  what  he 
thought  a  -iiflicinit  price,  requested 
.  his  son  to  bid  for  it,  and  the  son  ac- 
cordingly bid  $5.25  per  acre.  The 
executor  postponed  the  sale  on  that 
bid,  and  gave  notice  that  if  any 
person  would  come  forward  and 
give  more,  he  would  sell  the  land  to 
the  person  offering  the  best  price ; 
and  that  if  no  person  offered  a 
better  price  within  a  reasonable 
time,  he  would  sell  the  same  for  the 
Bum  so  bid  by  his  son.  No  subse- 
quent day  was  fixed  for  further  bid- 
dings. On  the  9th  of  August,  1792, 
the  executor  conveyed  the  land  to 
his  son,  at  the  sum  so  bid  by  him, 
and  the  son,  on  the  next  day,  recon- 
veyed  the  land  to  his  father,  the  ex- 
ecutor. No  consideration  passed, 
nor  any  security  for  any  considera-| 
tion,  on  either  conveyance.  The 
conveyances  were  set  aside  as  fraud- 
ulent, and  it  was  ordered  that  the 
land  be  sold  under  the  direction  of 
a  master,  and  that  the  proceeds  be 
brought  into  court.  Williamson  v. 
Adm'rt  of  Johnson,  537 

7.  The  land  was  sold  in  1812,  under 
the  direction  of  a  master,  and  the 
proceeds  brought  into  court.  It  was 
then  ordered  that  the  proceeds  be 
paid  to  the  executor  on  his  giving 
bond  with  surety  conditioned  for  the 
performance  of  the  trust  reposed  in 
him  by  the  will,  (by  which  the  pro- 
ceeds wete  to  be  equally  divided 
among  the  five  sons  of  the  testator, 
of  whom  the  executor  was  one.) 
The  executor,  after  receiving  the 
proceeds,  died,  and  administration 
of  his  personal  estate  was  granted. 
In  1820,  one  of  the  five  sons  died, 
and  the  administrator  of  his  personal 
estate  caused  a  suit  to  be  prosecuted 
against  the  surety  on  the  said  bond, 
to  recover  the  share  of  the  said  de- 
ceased son ;  and  in  February,  1822, 
recovered  final  judgment  for  $2202.- 
46.  Pending  the  said  suit,  by  deed 
dated  June  5th,  1821,  the  surety, 
with  his  wife,  conveyed  his  real  es- 
tate to  his  son  rfnd  daughter;  the 
consideration  expressed  in  the  deed 
being  $10,000  ;  the  deed  containing 
full  covenants.  This  deed  was  ac- 
knowledged September  29th,  1821, 
and  recorded  October  1st,  1821. | 
Execution  was  issued  on  the  said 


judgment,  and  in  May,  1823,  all  the 
right,  title  and  interest  of  the  said 
surety  in  the  real  estate  he  had  BO 
conveyed  was  sold  by  the  sheriff',  on 
the  said  judgment  against  the  surety, 
and  the  surety's  said  son  and  daugh- 
ter  bid  $3000  for  the  same,  ami  it 
was  struck  off  to  them.     The  nionev 
was  paid  to  the  sheriff  by  them,  or 
one  of  them ;  and  the  sheriff  paid 
thereout,  to  the  administrator  of  the 
said  deceased  son,  the  full  fifth  for 
which  the  said  judgment  had  been 
obtained.     In  March,  1824,  the  ad- 
ministrator of  the  executor  and  the 
surety  filed  a  bill  of  review,  alleging 
errors   in   the   decree  setting  aside 
the  deed  made  by  the  executor  in 
August,  1792,  and  setting  up  on  tho 
part  of  the  surety,  that  the  executor 
had  paid  to  the  said  deceased  son, 
in  April,  1792,  a  sum  equal  to  a  fifth 
part  of  the  sum  at  whi'ch  the  land 
had  been  struck  off  by  the  executor 
to  his  son,  in  March,  1789,  and  had 
obtained    the   acquittance   and  dis- 
charge of  the  said  deceased  son  for 
his    share    in    full  ;    and    praying 
divers   matters  on    the   part  of  the 
said  administrator  of  the  executor, 
and    praying    on    the    part  of  the 
surety  that  the  said  judgment  against 
him  be  set  aside,  and   that  the  ad- 
ministrator of  the  said  deceased  son 
might  repay  to  the  said  surety  all 
moneys  received   by  him  over  and 
above   what   should    have  been  re- 
ceived by  him  for  the  share  of  the 
said   deceased  son.     To  this  bill  a 
plea  and  demurrer  were  filed,  which 
were  allowed  on  the  15th  of  October, 
1827  ;  and  an  order  was  then  made, 
giving  leave  to  amend  the  said  bill 
by  striking  out  the  name  of  (he  ad- 
ministrator of  the  executor  as  com- 
plainant, and  the  names  of  all  the 
defendants   except  that  of  the  ad- 
ministrator of  the  deceased  son,  ami 
so  much  of  the  said  bill  as  seeks  a 
review  of  the  said  decree,  so  as  to 
confine   the   object    of    the    bill    to 
the     relief    sought     by     the     said 
surety    against   the   said  judgment, 
and  execution  obtained  against  hint 
on  the  said  bond.     On  the  28th  of 
January,  1828,  the  surety  tiled  his 
bill  confining  the  relief  he  sought  as 
directed  in  the  said  order.     In  Oc- 
tober, 1843,  upon  the  rejwrt  of   a 
master,  (to  whom   the   matter   had 
been    referred    by  an   ii.terlocutory 
decree,)    stating  that   on  the  2d  of 
April,  1792,  the  executor  had  paid 


676 


INDEX. 


the  deceased  son  $350.66,  and  that 
the  excess  of  the  judgment  against 
the  surety  over  the  amount^due  at 
the  time  of  the  judgment,  on  the 
share  of  the  said  deceased  son,  with 
interest  on  such  excess,  amounted 
to  $2256 ;  a  final  decree  was  made 
by  the  Chancellor  for  that  sum 
against  Asher  Williamson  ;  (he  was 
the  administrator  of  the  deceasec 
eon  ;)  and  that  execution  issue  there 
for  against  the  goods  and  chattels 
lands  and  tenements  of  the  sak 
Asher  Williamson.  On  appeal  to 
the  Court  of  Errors  and  Appeals 
the  decree  was  affirmed.  Williamson 
v.  Adm'rs  of  Johnson,  53 

.  If  an  executor  receive  the  effect.' 
of  his  testator,  and  does  not  apply 
them  in  due  course  of  administra- 
tion, his  estate  is  liable,  and  his  ex- 
ecutor may  be  called  upon  in  equity 
to  pay  the  legacies  in  due  course  of 
administration  of  the  assets  which 
came  to  his  hands.  Ei?r  of  Moore 
v.  Smith,  649 

Vide  HUSBAND  AND  WTIFE,  4. 
SPECIFIC  PERFORMANCE,  3 
EVIDENCE,  3. 
LEGACY,  2,  3. 
WILL,  5. 
PLEADINGS — ANSWER,  6. 


F. 

FEME  COVERT. 
Vide  HUSBAND  AND  WIFE. 

FRAUD. 

1.  A  sheriff's  sale  of  land  declared  un- 
lawful by  reason  of  means  used  to 
prevent  competition,  and  the  conse- 
quent sacrifice  of  the  property.    The 
Hamburgh   Manufacturing   Company 
v.  Edsail,  249 

2.  Several  executions  had  been  levied 
by  a   sheriff   on    the   lands  of    the 
Hamburgh     Manufacturing      Com- 
pany, of  which  (he  first  in   priority 
was  in  favor  of  K.  The  same  sheriff 
had  in  hi-  hands,  at  ihe  surne  time, 
an  execution  issued  on  a   decree  in 
chancery,  on  the  first  mortgage,  for 
the  sale  of   the  mine  farm    of  the 
Clinton    Manufacturing    Company, 
and  a  I  »o  an  execution  at  law  against 


the  said  Clinton  company,  by  virtue 
of  which  he  had  levied  on  the  said 
Clinton  company's  mine  farm.  E. 
held  a  subsequent  mortgage  on  this 
Clinton  mine  farm.  Prior  to  the 
sale,  certain  creditors  of  the  Ham- 
burgh company,  having  no  judg- 
ments, together  with  E.,  entered  into 
an  agreement  in  writing,  among 
themselves,  that  L.,  one  of  them, 
should,  as  their  trustee,  buy  the  lands 
of  both  companies,  as  a  means  of 
securing  their  debts  against  the 
Hamburgh  company,  including  E.'s 
judgment  and  other  claims  he  had 
or  made  against  the  Hamburgh 
company,  and  his  mortgage  on  the 
Clinton  mine  farm.  There  was  al*o 
an  understanding  with  P  ,  who  held 
the  bulk  of  the  stock  of  both  com- 
panies, and  was  carrying  on  or  con- 
ducting the  business  of  the  Ham- 
burgh company,  that  the  said  trus- 
tees should  convey  both  properties 
to  him,  on  his  paying  the  debts  of 
the  said  agreeing  Hamburgh  credi- 
tors, and  the  sums  for  which  the 
property  should  be  struck  off  to  the 
said  trustee.  By  these  means  com- 
petition was  prevented,  and  the 
properties  were  sold  at  a  sacrifice, 
and  bought  by  L.,  one  of  the  agree- 
ing Hamburgh  creditors;  the  other 
judgment  creditors  of  the  Hamburgh 
company  not  being  present  at  the 
sale.  The  sheriff's  deed  to  L.  was 
absolute.  On  a  bill  filed  by  the 
Hamburgh  company  and  P.,  it  was 
held  that  the  sales  of  both  proper- 
ties were  unlawful ;  and  that  L.  was 
a  trustee  of  the  Hamburgh  property 
for  the  Hamburgh  company  and  its 
creditors;  but  that  as  to  the  Clinton 
property  no  decree  could  be  made, 
the  Clinton  company  not  being  par- 
ties to  the  suit.  /  6. 

Vide  PARTNERS,  4. 

EXECUTORS   AND   ADMINISTRA- 
TORS, 5,  6. 
CORPORATIONS,  2,  8,  9, 10. 


FRAUDS  BY  INCORPORATED 
COMPANIES. 

'roceedings  under  the  act  to  prevent. 
Corrigan  v.  The  Trenton  Delaware 
Falls  Company,  232 

FRAUDS,  (STATUTE  OF.) 
Vide  TRUST  AND  TRUSTEE,  6. 


INDEX. 


677 


FRAUDULENT  CONVEYANCE. 

Vide  EXECUTORS  AND  ADMINISTRA- 
TORS, 6. 


G. 

GUARDIAN. 
Vide  LUNAQY. 

H. 
HABEAS  CORPUS. 

An  infant  daughter  ordered  to  be  de- 
livered to  her  father,  on  a  habeas' 
corpus  applied  for  by  him,  though | 
he  had  verbally  committed  her  to 
the  care  and  custody  of  the  respond- 
ent, until  she  should  attain  the  age 
of  twenty-one  years.  The  State,  ex\ 
relatione  Maync,  v.  Baldwin,  454 


HEIRS  AND  DEVISEES. 

1.  In  October,  1837,  D.  S.  being  then 
seized  of  a  farm  on  which  he  lived, 
and  of  no  other  real  estate,  made' 
his  will,  by  which  he  directed 
his  executor  to  pay  the  debts  out  of 
his  personal  estate,  and  in  defect 
thereof,  to  sell  so  much  of  the  real 
estate  as  to  pay  the  debts ;  and  from 
and  after  the  payment  thereof,  and; 
subject  thereto,  that  the  residue  of 
the  personal  estate  be  divided  be-| 
tween  his  widow  and  his  nephew  D. 
D. ;  and  the  rents  and  profits  of 
his  real  estate  be  distributed  to! 
them  during  their  lives ;  and  that 
on  their  deaths,  respectively,  their 
respective  shares  of  such  rents  and 
profits  to  go  to  H.  C.  during  his 
life;  and  that  on  his  death,  all  the 
said  real  estate  should  go  to  the 
children  of  the  said  H.  C.  In  April,' 
1839,  D,  S.  bought  another  farm,  andj 
paid  $2000  of  the  purchase  money,, 
and  for  the  balance,  gave  a  mortgage' 
on  the  farm  so  bought;  and  after- 
wards, to  discharge  that  mortgage, 
borrowed  money  on  his  own  bonds,' 
some  of  which  existed  as  debt* 
against  his  estate  after  his  death.' 
D.  8.  died  in  October,  1841,  without1 
having  altered  or  republished  his 
will ;  and  the  farm  purchased  byj 
him  after  making  his  will  descended: 
to  a  brother  and  nephews  and  nieces,  I 


hi*  heirs-at-law.  Held  that  the  de~ 
ccended  land  was  chargeable  with 
the  debts  before  the  land  devi-<-<l. 
Stires  v.  Stires,  224 

2.  A  decree  against  executors,  in  a  suit 
against  them  is  no  evidence,  in  a 
subsequent  suit  against  the  heirs  and 
devisees,  of  the  existence  of  the 
debt.  The  Adm'rs  of  Hazen  v.  The 
Heirs  and  Devisees  oj  TiMman,  3b3 


HUSBAND  AND  WIFE. 

.  If  there  be  ground  for  apprehension 
on  the  part  of  the  wife,  that  her  hus- 
band will  not  make  a  proper  defence 
for  her,  leave  will  be  granted  to  her 
to  answer  separately  from  her  hus- 
band. Robbing  v.  Abrahams  and 
Wife,  51 

.A  husband  bought  real  estate,  and 
directed  the  deed  therefor  to  be 
made  to  another  in  trust  for  his  wife 
and  her  heirs,  so  that  the  same 
should  not  be  subject  to  his  control 
or  debts;  and  on  the  further  trust  to 
convey  the  same  to  such  person  or 
persons,  for  such  uses,  and  subject  to 
such  provisions,  limitations,  and 
agreements  as  the  wife,  by  writing 
under  seal  or  will,  should  give, 
limit,  or  appoint.  The  trustee  and 
the  wife  afterwards  executed  a  mort- 
gage to  secure  a  debt  due  from  the 
husband,  and  the  mortgage  was  duly 
acknowledged  by  the  wife.  Held 
that  the  mortgage  was  good.  Bob- 
bins v.  Abrahams,  465 

.The  depositions  of  the  husband, 
offered  on  the  part  of  the  defendant, 
was  held  to  be  inadmissible.  Ib. 


4.  P.  gave  a  mortgage  to  M.,  and  after- 
wards married  one  of  M.'s  two 
daughters  and  only  children.  M. 
died  intestate,  leaving  a  widow  and 
the  said  two  daughters.  The  widow 
died  shortly  after.  After  the  death 
of  M.  and  the  widow,  H.  married 
the  other  daughter,  and  she  died 
without  issue.  H.  then  adminiKteretl 
on  M.'s  personal  estate,  and  filed  a 
bill  of  foreclosure  on  the  mortgage. 
Held  that  H.,  by  administering  on 
the  estate  of  his  deceased  wife, 
became  entitled  to  her  share  of  the 
amount  due  on  the  mortgage,  with- 
out liability  to  account ;  but  that  no 
more  of  tie  mortgaged  preuiiae* 


678 


INDEX. 


should  be   decreed  to  be  sold  thanj!4.  In  general,  an  injunction  will  not  be 


enough  to  pay  the  share  of  H.'s  de- 
ceased wife.  Adm'rs  of  Moore  v. 
Adm'rs  of  Poland,  517 


.  Though  there  be  no  express  evidence  5 
of  the  delivery  of    an  ante-nuptial  1 1 
agreement,  and  though  it  was  in  the 
possession  of  the  husband  after  the 
marriage,  its  delivery  will  be  pre- 
sumed if  its  due  execution  be  proved 
and  it  appear  that  it  was  recognized 
bv  the  husband.     Ex'rs  of  Moore  v. 
Smith,  649 

Vide  ALIMONY,  1,  2. 

SPECIFIC  PERFORMANCE,  10. 
'  TRUST  AND  TRUSTEE,  8. 
COSTS,  1. 


I. 

INFANT. 
Vide  HABEAS  CORPUS,  1. 

INJUNCTION. 

1.  On  the  positive  denial  of  the  allega- 
tions of  the  bill  on  which  the  com- 
plainant rests  his  equity,  an  injunc- 
tion  will    be   dissolved      Hatch   v. 
Daniels,  14 ;    Washer  v.  Brown,      81 

2.  On  bill  for  the  specific  performance 
of  an  alleged  agreement  for  the  sale 
of  land   to  the  complainant,  an  in- 
junction was  issued  to  restrain  a  sub- 
sequent purchaser  from  proceeding 
in  an  ejectment  to  recover  posses- 
sion •  from    the    complainant.     The 
injunction  may  be  dissolved  on  the 
answer  of  the   defendant  who  is  al- 
leged to  have  made  the  agreement 
to  sell,  denying  the  agreement,  and 
the  answer  of  the  subsequent  pur- 
chaser, denying  any  knowledge,  in- 
formation, or  belief  of  such  alleged 
agreement   Rockwell  v.  Lawrence,  20 

3.  If,  on  examining  the  complainant's 
claim  of  title  to  timber   land,  from 
which  the  defendant  has  been   re- 
strained  from   cutting    timber,    the 
court   is   clearly   satisfied    that   the 
complainant  has  no  title,  the  injunc- 
tion will  not  be  retained,  though  an 
action    of  trespass    for    cutting   be 
pending  at  law,  but  will  be  dissolved. 

Weatcott  v.  Qifford,  24 


dissolved  unless  all  the  defendants 
implicated  in  the  charge  have 
answered.  Smith  v.  Loomis,  60 

,  A.  who  was  keeping  a  tavern,  and 
occupying  a  house  and  lands'on  one 
side  of  the  road,  and  a  small  strip 
on  the  other  side,  on  which  were  a 
well  and  stable  u-*ed  by  him  for  the 
purpose  of  the  tavern,  agreed  to  sell 
the  premises  to  B,  knowing  that  B 
desired  to  purchase  them  for  the 
purposes  of  keeping  a  tavern  there, 
and  represented  to  B  that  his  title 
covered  the  strip  on  which  was  the 
well  and  stables.  A  did  not  own  the 
strip.  Under  this  representation  B 
entered  into  articles  of  agreement 
for  the  purchase.  An  injunction  was 
granted,  staying  the  further  prosecu- 
tion of  an  action  at  law,  brought  by 
A  against  B  for  not  complying  with 
the  articles,  though  the  deed  to  A, 
which  was  referred  to  in  the  articles 
as  containing  a  description  of  the 
premises,  was  on  the  table  when  the 
articles  were  drawn  in  the  presence 
of  B;  the  bill  alleging  that  B,  con- 
fiding in  the  representations  of  A, 
did  not  examine  the  deed.  But  on 
the  coming  in  of  the  answer,  posi- 
tively denying  the  allegations  on 
which  the  complainant's  equity 
rested,  the  injunction  was  dissolved. 
Washer  v.  Brown,  81 

.  The  facts  on  which  the  equity  of  the 
bill  rested,  were  not  charged  to  be 
within  the  knowledge  of  the  admin- 
istrator. A  motion  to  dissolve  on 
his  answer  was  denied.  Williams  v. 
Adm'rs  of  Stevens,  119 

,  In  1813,  "The  Society  for  Establish- 
ing Useful  Manufactures"  sold  a  lot 
in  Paterson,  "  together  with  the  right 
of  taking  from  their  canal  twelve 
inches  square  of  water."  A  mill  was 
shortly  after  erected  on  the  lot,  and 
water  was  drawn  from  the  canal  for 
supplying  it,  without  the  use  of  any 
means  for  accurately  measuring  the 
quantity  dr^wn.  In  1827,  the  soci- 
ety gave  a  notice  to  the  owner  of  the 
mill  that  they  had  reason  to  believe 
he  was  taking  more  than  the  said 
quantity  of  water,  and  requesting 
him  to  confine  his  future  use  of 
water  to  that  quantity.  The  owner 
of  the  mill,  in  answer  to  the  notice, 
said  he  was  not  using  more  than  the 


INDEX. 


670 


one  foot  of  water.     In  December, 

1843,  a  like  nolice  was  given   and 
request  made.     The  owner  did  no- 
thing to  limit  the  flow.     In  April, 

1844,  the  society  built  a  stone  wall 
in   their  canal,  opposite   the    head- 
race leading  the  water  on  the  lot, 
and  placed  in  the  side  of  the  wall 
:i  piece  of  cast  iron,  with  an  aperture 
in  it  of  twelve  inches  square,  for  the 
flow   of  water   into   the  head-race ; 
and   thereupon    the    owner  of   the 
mill    prostrated    the   said   wall.     A 
motion    for  a    preliminary    injunc- 
tion,   restraining     the   owner   from 
talcing  more  water   than    will    run 
through  an  aperture  of  twelve  inches 
square,  and   from  pulling  down  or 
taking  out  any  gauge  which  the  so- 
ciety might  insert  for  the  purpose 
of  measuring  twelve  inches  square 
of  water,  was  denied.     The  Society 
for  Establishing  Uaeful  Manufactures' 
v.  Holsman,     '  126 

8.  Preliminary  injunction  denied  after 
great  lapse  of  time.  Ib. 

9  A  mortgagor,  in  1829,  conveyed  a 
part  of  the  mortgaged  premises  to  C. 
The  mortgagee,  on  the  same  day,! 
released  that  part  to  C.,  and  on  the 
next  day  assigned  the  mortgage 
to  D.  On  bill  filed  by  D.  in  1844, 
a  decree  was  made  for  the  sale  of 
all  the  land  described  in  the  mort- 
gage. C.  was  made  a  party  defend- 
ant with  the  mortgagor,  but  did  not 
appear,  knowing  that  D.  had  notice 
of  the  release.  At  the  sheriff's  sale,' 
all  the  land  described  in  the  mort-| 
gage  was  set  up  and  struck  off  to  D.;! 
and  the  sheriff,  in  pursuance  of  an 
arrangement  between  D.  and  E.,' 
made  the  deed  to  E.  E;  brought \ 
ejectment  against  C.  for  the  part  so1 
conveyed  and  released  to  him.  On  a 
bill  filed  by  C.  against  E.  staling' 
these  facts,  and  that  D.,  when  he 
took  the  assignment  of  the  mortgage 
had  notice  of  the  release,  a  prelim- 
inary injunction  was  granted,  re- 
straining E.  from  prosecuting  the 
ejectment.  Pierson  and  Oruet  v.  Ry- 
crson,  196 

10.  A  denial  on  information  and  be- 
lief of  notice  to  another  is  not  suffi- 
cient to  dissolve  an  injunction.     Ib. 

11.  The  Society  for  Establishing  Use- 
ful   Manufactures,    established     in 
1791,   located    at   the   falls  of   the 


Passaic,  and  owning  mill  sit<-i  th"r»>. 
on  the  18th  of  Aiigu-n,  18t>,  pulled 
down  a  gate  and  \v  t>:t-  w  iv  of  "The 
Morris  Canal  and  Banking  Com- 
pany,"' incorporated  in  1821,  an  I 
discharged  the  water  from  the  ciual 
into  thw  Passaic  above  the  fa  I  In. 
The  canal  company  repaired  the 
breach,  and  filed  their  bill  against 
the  society  for  an  injunction,  which 
was  granted.  The  society  .ui-swered 
the  bill,  and  set  up  an  agreement 
under  seal,  entered  into  between  the 
canal  company  and  them,  in  1836, 
for  the  discharge  of  water  from  the 
canal  into  the  stream  above  the  fal  I  s, 
and  stated  that  the  canal  company, 
in  breach  of  the  contract,  had  nailed 
down  the  gates  of  the  waste  way, 
and  stopped  the  flow  of  water  from 
the  canal  to  the  river;  and  there- 
upon it  was  moved  to  dissolve  the 
injunction.  The  motion  was  denied. 
The  society  also  filed  a  cross  bill, 
praying  a  decree  for  the  specific 
performance  of  the  agreement,  and 
that  the  canal  company  might,  in 
the  meantime,  be  restrained  from 
preventing  the  flow  of  water  from 
the  canal  to  the  stream,  according  to 
the  provisions  of  the  agreement, 
and  moved  for  the  injunction  ac- 
cordingly. This  motion  was  denied. 
The  Morris  Canal  and  Banking  Com- 
pany v.  The  Society  for  EttablUhing 
Useful  Manufactures,  203 

12.  A  right  claimed  must  be  free  from 
doubt,  and  the  injury  from  a  viola- 
tion of  it  irreparable  in  damages,  to 
authorize  the  court  to  interpose  in 
aid  of  it  by  preliminary  injunction. 

Ib. 

13.  A  judgment  creditor  of  a  trustee 
restrained  from  selling  his  title  and 
interest  in  the  trust  property  by  ex- 
ecution.    Campfield  v.  Johiaon,    245 

14.  J.  C.  mortgaged  lands  to  C.  C.,  and 
afterwards  conveyed  the  lands  to  C. 
C.  in  trust  to  apply  the   rents  and 
profits  towards  paying  the  mortgage 
and  a  certain  note  given  by  J.  C.  to 
P.  S.,  until  a  sale  could  be  made  of 
the  premises  at  a  fair  price,  and  then 
to  sell  the  same,  or  any  part  thereof, 
to  pay  the  mortgage  and  the  note, 
and  to  pay  the  residue  of  the  pro- 
ceeds of  the  sale  to  J.  C.   C.  C.  went 
into  possession  of  the  lands.    J.  C. 
afterwards    died    intestate,   leaving 
infant    heirs.     C.   C.   assigned    the 


;6SO 


INDEX. 


mortgage  to  P.  A.  J.,  who  filed  his 
bill  of  foreclosure  thereon.  Pend- 
ing the  foreclosure  suit,  P.  A.  J.  re- 
covered judgment  at  law  against  (J. 
C.  on  his  personal  liabilities,  and 
caused  executions  to  be  levied  on  "  all 
the  right,  title  and  interest "  of  C.  C. 
in  the  premises  so  conveyed  to  him 
in  trust.  On  bill  filed  by  C.  C.,  sale 
under  the  said  levies  was  enjoined, 
and  on  motion  to  dissolve  without 
answer,  the  injunction  was  retained. 

Ib. 

15.  On  motion,  on  bill  and  notice,  for 
an  injunction  and  the  appointment 
of  a  receiver,  the  affidavit  of  the  de- 
fendant may  be  read  in  opposition. 
Kean  v.  Colt,  365 

16.  To  authorize  an  injunction  and  the 
appointment    of    a    receiver,    there 
must  be  a  well-grounded  apprehen- 
sion of  injury  about  to  be  done.    Ib. 

17.  When  the  misconduct   alleged   in 
the  bill   occurred,  if  at  all,  several 
years  before,  and  no  act  is  threat- 
ened, or  mischief  impending,  an  in- 
unction and   receiver  will   not   be 

ordered.  Ib. 

18.  In  1822,  the  owner  of  a  mill  seat 
leased    to   the   canal    company,    for 
three  years,  at  an  annual  rent,  the 
privilege   of  diverting   water   from 
the  stream  at  a  point  above  and  be- 
yond his  land   into  the  canal.     He 
then  sold   his  mill  seat  to  a  third 
person,  reserving  by    the   deed    all 

.  ri«ht,  interest  and  demand  against 
the  company  for  the  use  of  the 
water  whiph  he  then  had,  or  which 
either  of  the  parties  to  the  deed 
might  thereafter  have,  as  fully  as  if 
he  had  not  conveyed  the  mill 
seat.  The  company  paid  the  grantor 
of  the  mill  seat  the  rent  for  the  three 
years.  Afier  the  expiration  of  the 
lease,  the  company  continued  to  use 
water  diverted  from  the  stream 
without  paying  for  it.  In  1845,  the 
grantor  filed  a  bill,  praying  an  ac- 
count and  payment  of  the  ruiim,  ami 
an  injunction  restraining  the  com- 
pany from  diverting  the  water.  The 
injiinriimi  was  denied.  Warm  v. 
The  Morris  Canal  an<l  ISaitkiny  Com- 
pany, 410 

19.  When  there  is  a  remedy  at   law, 
and  nothing  to  xhow  that  the  dam- 
ages which    might    be    awarded    at 


law  could  not  be  realized,  and  no- 
thing of  the  character  of  irreparable 
damage,  an  injunction  will  not  be 
granted.  /&. 

Vide  APPEAL,  1,  2,  3,  4. 
TIMBER,  1,  2,  3. 
CORPORATIONS,  2. 
APPEAL,  6. 
PARTNERSHIP,  1,  3. 
PARTITION,  1,  4. 


J. 
JUDGMENT. 

Relief  from  a  judgment  against  a 
surety  granted  on  the  discovery  of 
a  receipt  given  to  the  deceased  prin- 
cipal. 

Vide  KECEIPT,  2. 


L. 
LAND. 

1.  An  authority  to  another  to  execute 
for  the  owner,  and  in  his  absence,  :i 
deed   for  land,    must    be    by   deed. 
Tappan  v.  Eedfield,  339 

2.  When  not  chargeable  with  legacies. 

Vide  EXECUTORS  AND  ADMINISTRA- 
TORS. 
WILL,  4. 

LAPSE  OF  TIME. 

1.  A  mortgage  will  be  presumed  paid 
if  the  mortgagee  never  entered,  and 
there  has   been  no  foreclosure  nor 
payment  of   interest  within  twenty 
years.  Ex'rs  of  Cavalier  v.  Huffman, 

354 

2.  Semble.     Insolvency  of  the  mortga- 
gor is  not  sufficient  to  overcome   the 
presumption  Ib. 

3.  Would  the  absence  of  the  mortgagor 
from  the  state  for  a   portion   uf  the 
twenty  yearn  defeat  the  presumption 
of  payment?     It  seems  not.  Ib. 

4.  Where  a  bill  for  the  recovery  of  a 
Ifgacy,    bequeathed     to    a    married 
woman,    was    filed    thirty-one  yearn 
after    the     death    of    the     testator, 
twenty-one    years   after    the    settle- 
ment   of   the  eblate.  and    acvenicea 


INDEX. 


681 


years  after  the  death  of  the  executor, 
and  no  cause  shown  for  the  delay, 
the  bill  was  dismissed  on  the  ground 
of  the  presumption  of  payment 
arising  from  the  time  which  had 
passed  after  the  right  of  action  ac- 
crued before  suit  brought.  Peacock 
v.  Black,  535 

Vide  INJUNCTION,  7,  8. 
ABSENCE,  1, 

EXECUTORS  AND  ADMINISTRA- 
TOBS,  6,  7. 


LEASE. 
Vide  PARTNERSHIP,  2. 

LEGACY. 

1  The  will  directs,  in  substance,  that 
$1500  be  put  at  interest  by  the  exec- 
utors, and  the  interest  be  added  to 
the  principal  from  time  to  time,  or 
the  interest  put  at  interest ;  and 
that  one-half  of  the  said  snm,  and 
•of  the  interest  which  may  have  ac- 
crued when  M.  L  C.  attains  twenty- 
one,  be  paid  to  her,  and  that  the 
other  half  be  paid  to  J.  C.  when  he 
attains  twenty-one ;  and  that  if 
either  die  under  age,  leaving  issue, 
his  share  be  paid  to  his  children ; 
and  if  either  die  under  twenty-one 
without  leaving  issue,  the  will  gives 
the  whole  of  said  share  and  inter- 
est to  the  other,  or  to  the  children 
which  the  other,  if  dead,  /nay  have 
left.  Held,  that  on  the  death  of  one 
under  twenty-one  leaving  issue,  the 
issue  are  entitled  to  receive  the  half ; 
and  further,  that  the  time  of  pay- 
ment in  that  event  is  not  postponed 
to  the  time  at  which  the  deceased 
parent  would  have  attained  twenty- 
one  if  he  had  lived.  Ware  v.  Ez'rs 
of  Cook,  193 

2.  The  administratrix  of  an  executor 
held  liable  to  a  legatee  under   the 
will    of    which    her    intestate   was 
executor,  for  the  proceeds  of  bank 
stock  belonging  to  the  first  estate, 
which  was  transferred  by  the  exec- 
utor to  himself   in  his  own  name, 
and  which  came  to  the  hands  of,  and 
was    sold     by    his    administratrix. 
Tucker  v.  Adm'x  of  Green,  who  was 
Ez'r  of  Green, 

3.  E.  G.  died  in  1827,  and  by  his  will 
gave  several  pecuniary  legacies,  and 


among  them  $900  to  his  grandson 
E.  G.  8.,  a  minor,  to  be  kept  at  inter- 
est by  the  executor  of  the  will  until 
E.  G.  8.  attained  the  age  of  twenty- 
one,  and  then  to  be  paid  to  him, 
with  the  interest  that  should  have 
accrued  thereon.  And  for  the  pur- 
pose of  carrying  his  will  into  effect, 
and  paying  the  debts  and  legacies, 
authorized  the  executor  to  sell  so 
much  of  the  real  estate  as  might  be 
necessary.  He  then  gave  all  the 
rest  of  his  estate,  real  and  personal, 
to  his  son,  J.  D.  G.,  whom  he  ap- 
pointed executor.  The  legacies 
amounted  to  $3000.  The  personal 
estate  of  E.  G.  was  appraised  at 
$3071.23,  including  thirty-six  shares 
of  Trenton  Bank  stock,  appraised 
at  $1260.  In  1829,  J.  D.  G.,  as  ex- 
ecutor of  the  will  of  E.  G.,  trans- 
ferred to  himself,  in  his  own  name, 
the  thirty-six  shares  of  stock,  and 
they  stood  in  his  own  name  at  his 
death,  in  1830.  No  administration 
de  bonis  nan  with  the  will  of  E.  G. 
annexed  was  ever  granted.  Admin- 
istration of  the  personal  estate  of 
J.  D.  G.  was  committed  to  his 
widow,  F.  G.  In  1836,  she  sold  the 
bank  stock  for  $1360,  and,  as_ admin- 
istratrix of  J.  D.  G.,  transferred  it 
to  the  purchaser.  On  bill  by  E.  G. 
8.  against  the  administratrix  of  J. 
D.  G.,  for  the  payment  of  the  legacy, 
it  was  decreed  for  the  complainant. 

Ib 

Vide  EXECUTORS  AND   ADMINISTRA- 
TORS, 1,  2,  3,  4,  8. 
LAPSE  OF  TIME,  4. 
WILL,  4. 


LIEN  (OF  MECHANICS.) 

1.  Construction  of  the  mechanics'  lien 
law.     Ez'rt  of  Vundyne  v.  Vanness, 

485 

2.  A   carpenter  finished   a    dwelling- 
house  on  a  tract  of  land  on  the  17th 
of  November,  1842,  and   filed   his 
claim  in  the  office  of  the  clerk  of 
the  county  on  the  17th  of  January, 
1843.  On  the  22d  of  December,  1S42, 
theownerof  the  laud,  then  in  DOM* 
pion  of  the  house,  mortgaged  it  to  a 
person  having  no  actual  knowledge 
of  the  carpenters'  lien.     Held  ihitt 
the  carpenteni'  lieu  was  prior  to  that 
of  the  mortgage.  1  &• 


682 


D  E  X. 


3.  It  was  held  that  the  carpenters'  lien 
was  not  confined  to  the  house  and 
the  ground  it  covered,  but  extended 
to  so  much  of  the  tract  of  land  on 
which  the  house  was  built  as,  with 
the  house,  would  be  required  to 
discharge  i .;  Ib. 


LOSS  (OF  KECEIPT.) 
Vide  EVIDENCE,  4. 


LUNACY. 

l.A  guardianship  in  lunacy  may  be 
superseded  on  its  being  made  to 
appear  that  he  who  has  been  found 
lunatic  is  restored  to  nanity.  Mutter 
of  Rogers,  46 

2.  The  usual  course  is  to  refer  it  to  a 
master  to  take  proofs  as  to  the  state 
of  mind  of  the  petitioner,  and  to  re- 
port  the   proofs    and    his    opinion 
thereon.     But  though  the  master  re- 
ports   the   proofs   and   his  opinion 
thereon   that  the   petitioner  is   re- 
stored, the   Chancellor,  in  his  dis- 
cretion, may  direct  tlie  petitioner  to 
appear  before  him  for  inspection  and 
examination.  Ib. 

3.  The   Chancellor,  in   his  discretion, 
may  discharge  the  guardianship  on 
the  ground   of  restored   sanity,   or 
direct  an  issue  to  try  the  question. 

Ib. 


M. 

'[  MISTAKE. 

Belief  granted  when  by  mistake  of 
both  seller  and  buyer,  the  deed  did 
not  cover  the  land  intended  to  be 
sold  and  bought ;  and  money  paid 
on  account  of  the  purchase  decreed 
to  be  repaid,  and  the  bond  and  mort- 
gage given  by  the  purchaser  to  be 
canceled.  Blair  \.  M'Donnell,  327 


MORTGAGE. 
/.  Of  the  Mortgage  Generally. 

1.  A  mortgage  was  given  by  A,  liv- 
ing in  this  state,  to  B,  of  New  York, 
on  lands  in  this  state,  to  secure  the 


payment  of  a  bond.  The  mortgagor 
afterwards,  for  purposes  of  his  own, 
executed  and  caused  to  be  recorded, 
in  the  proper  office  in  this  state,  a 
deed  of  the  premises  to  the  mortga- 
gee. The  mortgagee,  without  hav- 
ing assented  to  the  deed,  assigned 
the  bond  and  mortgage,  with  all  his 
other  property,  for  the  benefit  of  all 
his  creditors.  Afterwards,  a  creditor 
of  the  mortgagee  attached  the  land. 
Held  that  the  attachment  did  not 
hold  the  property  against  the  mort- 
gage. Longstreet  v.  Shipman,  43 

.  If  a  mortgagor,  subsequently  to  the 
mortgage,  sells  and  conveys  a  part 
of  the  mortgaged  premises,  an  equity 
arises  in  favor  of  the  purchaser  to 
have  the  part  which  remains  in  the 
mortgagor  first  sold  for  or  towards 
the  payment  of  the  mortgage.  Enyle 
T.  Haineii,  186 

.  But  if  the  purchaser  agrees  with  the 
mortgagor  that  the  part  he  buys 
shall  be  subject  to  the  mortgage,  and 
that  the  amount  due  on  the  mortgage 
shall  be  a  part  of  the  consideration 
he  is  to  pay,  equity  will  not  inter- 
pose to  subject  the  part  of  the  mort- 
gaged premises  remaining  in  the 
mortgagor  to  be  first  sold.  Ib. 

4.  And   a  subsequent  grantee  of  such 
purchaser  from  the  mortgagor  with 
notice  has  no  better  equity  against 
the  mortgagor.  Ib. 

5.  A  mortgagee  in   possession  person- 
ally, is  chargeable  with  reasonable 
rent,  and  a  subsequent  mortgagee  is 
entitled  to  the  aid  of  the  court  in 
having  such    rent  ascertained  and 
applied   in  reduction  of   the  prior 
mortgage.     Moore  v.  Degraw,      346 

6.  Decree  opened,  under  the  circum- 
stances, after  enrollment,  and  on  mo- 
tion, on  application  of  a  subsequent 
mortgagee,  for  the  purpose  of  charg- 
ing   the   complainant,    to   whom    a 
prior  mortgage   had    been   assigned 
when  he  was  tenant  of  the  premises 
under  the  mortgagor,  and  who  filed 
a  bill  to  foreclose  the   prior  mort- 
gage, and  remained  in  possession  in 

|     the  meantime  with  reasonable  rent. 

Ib. 
II.  Priority  of  Mortgaget. 

I.  A   sold   a   tract  of   land   to   B  for 
;  $4000  to  be  paid  on  the  do- 


INDEX. 


683 


livery  of  the  deed,  and  the  balance 
of  the  consideration  money  to  be 
secured  by  a  mortgage  on  the  pre- 
mises. Before  the  deed  was  execu- 
ted, it  was  agreed  between  the  seller 
and  purchaser  and  C.  that  if  C  would 
lend  the  purchaser  $2000,  to  enable 
him  to  make  the  cash  payment  of 
$4000,  a  first  mortgage  should  be 
executed  by  the  purchaser  to  C  for 
the  $2000  to  be  loaned  by  him,  and 
that  the  mortgage  to  C  should  be 
first  recorded.  C  loaned  the  $2000, 
and  the  deed  and  mortgages  were 
made  accordingly,  and  the  mortgage 
to  C  was  first  recorded.  Afterwards, 
A  assigned  his  mortgage  to  the  com- 
plainant. Held  that  C's  mortgage 
was  the  first  encumbrance.  Lovett 
v.  Demarest,  113 

2.  A   certificate   of   the   clerk   of  the 
county,  setting  forth  that  the  mort- 
gage to  A  was  the  first  and  only 
mortgage  on  record,  shown  by  A  to 
the  complainant  when  he  took  the 
assignment  of  the  mortgage,  will  not 
have  the  effect  of  giving  priority  to 
the  mortgage  assigned  to  the  com- 
plainant. Ib. 

3.  Between    two    mortgagees,    neither: 
having  notice  of  the  other's  loort-j 
gage,  the  mortgage  first  recorded  has: 
preference,   though   the    other   was! 
first  executed  and   had   been   fore- 
closed,  and   the  holder  of  it  had 
bought  the  mortgaged  premises  at 
the  sale   under  the   decree  in   the 
foreclosure  suit;  the  holder  of  the 
mortgage  first  recorded  not  having 
been   made   a   party    in   that  suit. 
Taylor  v.  Thomas,  331 

4.  On  a  bill  by  the  holder  of  a  mort- 
gage last  given  but  first  recorded, 
denying  notice  of  a  mortgage  prior 
in  date,  and  answer  averring  notice 
and    replication,   the    cause    being 
brought  to  hearing  on  bill,  answer 
and  replication,  it  was  decreed  for 
the  complainant.  Ib. 


N. 
NOTICE. 

Vide  CORPORATIONS,  8,  9,  10. 
MORTGAGE,  4,  6,  6,  7,  8. 
INJUNCTION,  9. 
PLEADINGS— ANSWER,  9. 


O. 

ORDINARY. 
Vide  APPEAL,  9 

P. 

PARENT  AND  CHILD. 
Vide  HABEAS  CORPUS,  1. 

PARTIEa 
Vide  PLEADINGS,  L 

PARTITION. 

L.On  bill  for  partition,  injunction 
granted  restraining  the  party  in 
possession  from  committing  waste 
by  cutting  timber.  Obert  v.  Obert, 

397 

2.  If  the  title  of  the  complainant  in  s 
bill  for  partition  is  denied,  the  court 
may  retain  the  bill  to  give  him  an 
opportunity  to  try  his  title  at  law. 

Jb. 

3.  An  equitable  partition  may  be  made 
so  as  to  assign  a  portion  of  the  laud 
on  which  improvements  have  been 
made  to  him  who  made  them  ;  and 
if  he  has  cut  off  the  timber  from  a 
part  of  the  land  adjoining  the  part 
improved,  the  court  may  direct  that 
the  land  from  which  the  timber  has 
been  cut,  be  valued  as  it  was  with 
the  timber  on  it  and  included  in  the 
assignment  to  him.  Jb. 

4.  In  special  cases,  one  tenant  in  com- 
mon may,  on  the  application  of  the 
other,  be  enjoined  from  committing 
waste,  but  the  jurisdiction  is  spar- 
ingly exercised.  Ib. 

5.  On  bill  for  partition  by  a  tenant  in 
common   owning   a  twentieth  part, 
an   injunction   was  granted  against 
the  tenant  in  common  in  possession, 
restraining  him  from  cutting  limber. 
His  answer  showed    that    he   wa« 
owner  of  eight-twentieths;  that  he 
made  improvements  to  the  amount 
of  $2000  ;  and  that  he  only  intended 
to  cut  the  wood  and  limber  from  two 
acres  near  the  barn,  which  he  had 


684 


INDEX. 


•  commenced  doing  when  the  injunc 
lion  was  served,  and  he  denied  ali 
intention  to  commit  waste.  The  in> 
junction  was  dissolved.  Ib 

Vide  SPECIFIC  PERFORMANCE,  4,  5,  6, 
TRUST  AND  TRUSTEE,  7. 


PARTNERSHIP. 

1.  One  of  two  partners,  being  about  to 
leave  the  state  for  his  health,  as- 
signed to  the  other  partner  a  bom 
and  mortgage  he  held  against  a  thin 
person.  He  died  while  absent.  Th 
administrator  of  his  personal  estat 
sued  the  surviving  partner  for  thi 
amount  of  the  bond  and  mortgage 
On  a  sworn  bill  filed  by  the  surviv 
ing  partner,  stating  that  the  de 
ceased  partner,  when  he  left,  was 
indebted  to  the  partnership  in  more 
than  the  amount  of  the  bond  anc 
mortgage,  and  that  it  was  agreed  be- 
tween them  that  they  should  be  ap- 
plied to  the  purposes  of  the  part- 
nership, (stating  how,)  and  that  he 
had  so  applied  them,  the  adminis 
trator  was  enjoined  from  proceeding 
in  the  suit.  Williams  v.  Adm'r  of 
Stevens,  119 

2.  In  1832,  G.  and  B.,  partners,  leased 
a  building  and  water-power,  and  pul 
machinery  into  the  building,  for  the 
purpose  of  carrying  on  their  part- 
nership business.     In  1834,  G.  gave 
a  mortgage  on  his  interest  in  the 
mill  and  machinery,  as  security  for 
his  individual  debt.  A  bill  was  filed 
in  July,  1840,  for  the  foreclosure  of 
the  mortgage  and  the  sale  of  G.'s 
interest.     The    lessor  was  made  a 
defendant.     The    partnership    con- 
tinued in  the  possession  and  use  of 
the  mill  -and   machinery.     At   the 
lime  of  the  filing  of  the  bill,  and  at 
the  hearing  of  the  cause,  there  was 
rent  due  from  the  partnership  to  the 
lessor.   Held  that  the  mortgagee  was 
not  entitled  to  G.'s  interest  in  the 
machinery  free  from   the  rent,  but 
thut  the  interest  which  could  be  de- 
creed to  be  sold  under  the  mortgage 
was  only  what  G.  would  be.  entitled 
to  after  paying  the  debts  of  the  part- 
nership,  including   the    rent.     The 
Receivers  of  the  Mechanics?  Bank  v. 
Godwin,  334 

3.  R.  and  B.  were  partners  in  two  es- 
tablishments, one  for  the  tailoring 


business,  and  the  other  for  merchan- 
dizing. They  dissolved,  and  sub- 
mitted the  matters  in  difference  be- 
tween them  -to  arbitration,  and 
entered  into  mutual  submission 
bonds,  with  sureties.  The  arbitra- 
tors awarded  that  R.  should  pay  the 
debts  of  the  tailoring  business  and 
pay  B.  $468.10,  and  that  B.  should 
pay  the  debts  of  the  merchandizing 
business,  in  full  of  all  demands  by 
either  against  the  other.  After  the 
award,  two  executions  on  judgments 
recovered  against  R.  and  B.  for 
debts  growing  out  of  the  merchan- 
dizing business  were  levied  on  the 
goods  and  lands  of  R.  and  B.  re- 
spectively. R.  obtained  an  injunc- 
tion against  selling  his  lands  before 
the  lands  of  B.  It  appeared  by  the 
answer  that  R.  had  not  paid  to  B. 
the  $468.10.  On  motion  to  dissolve 
the  injunction,  an  order  was  made 
that  R.  pay  the  $468.10  on  the  exe- 
cution within  thirty  days,  or  that 
the  injunction  be  dissolved.  Rim- 
yon  v.  Brokaw,  340 

,  A  and  B,  partners,  dissolved  part- 
nership, and  by  the  articles  of  dis- 
solution, A  took  the  property  of  .the 
partnership,  and  agreed  to  pay  the 
debts  of  the  partnership,  and  to  re- 
lieve B  therefrom,  and  to  pay  B 
the  balance  due  him  of  the  capital 
invested  by  him,  and  the  further 
sum  of  $1600  for  his  share  of  the 
stock  and  profits  of  the  partnership. 
After  the  dissolution,  a  creditor  of 
the  partnership  obtained  a  judgment 
against  A  and  B  for  a  partnership 
debt,  for.$607.91,  and  issued  execu- 
tion thereon,  which  was  levied  on 
the  personal  and  real  estate  of  both 
A  and  B.  A's  personal  property, 
so  levied  on,  consisting  of  store 
goods  and  other  personal  property, 
was  afterwards  assigned  to  G,  the 
father-in-law  of  A.  A  afterwards 
sold  to  D.  the  stock  of  goods  he  then 
had  on  hand,  and  C  thereupon,  by 
writing  under  seal,  released  to  D  all 
his  interest  in  the  goods  under  and 
by  virtue  of  the  said  execution, 
with  full  notice  of  the  terms  of  the 
dissolution.  Held  that  the  judgment 
could  not  be  enforced  against  B. 
Adm'r  of  Bell  v.  Hall,  477 


PAYMENT. 
Vide  LAPSE  OF  TIME,  1,  2,  3. 


INDEX. 


685 


PERFORMANCE. 
Vide  SPECIFIC  PERFORMANCE. 

PLEADINGS. 

1.  Parlies. 
II.  Bill. 

III.  Answer. 

IV.  Replication, 

I.  Parties. 

1.  Semble.    On  a  bill  filed  by  a  receiver 
for  the   creditors  and  stockholders 
of  a  corporation,  it  is  not  necessary 
to  make  the  creditors  and  stockhold- 
ers parties.    Mann  v.  Bruce,        413 

2.  On  a  bill  filed  by  a  creditor  of  a  tes- 
tator by  bond  signed  by  the  testator 
and  a  surety,  to  net  aside  a  sale  of 
lands    made   by   the    executor   and 
devisee,  and  to  subject  the  land  to 
the  payment  of  the  bond  debt,  held 
that  the  surety  was  not  a  necessary 
party  to  the  suit.    Ex'rs  of  Cooper  v. 


Cooper, 


498 


Vide  SPECIFIC  PERFORMANCE,  4,  5,  6. 

MORTGAGE,  7. 

II.  BUI. 

3.  A  recovery  will  not  be  allowed  on  a 
case  proved  if  it  differ  essentially 
from   the  case  made   by   the    bill. 
Hopper  v.  Sisco,  343 

4.  H.  filed  a  bill  against  the  devisees 
and   executors  of  S.,  deceased,   for 
the  foreclosure  of  a  mortgage  given 
by  S.,  in  his  lifetime,  to  H:,  in  the 
ordinary  form,    to  secure    a    bond 
conditioned    for    the    payment    of 
$1200.     The   defendants  set  up  in 
their   answer   that    the    bond    and 
mortgage  were  given  as  collateral 
security    for   certain  judgments  re- 
covered by  different  persons  against 
S.  which  had  been  assigned  to  H., 
and  that  the  said  judgments,  after 
the  giving  of  the  bond  and  mort- 
gage, were  satisfied  by  sales  on  exe- 
cution   of    other     property    of    S. 
Proofs  were  taken  by  the  defendants 
in  eupporl  of  the  defence.     H.  then 
provea    and    exhibited   several  re- 
ceipts for  moneys  paid  by  him  for 
S.  subsequent  to  the  bond  and  mort- 
gage, on  executions  on  judgments  of 


different  persons  against  S.,  two  of 
which  judgments  were  assigned  to 
H.,  and  a  receipt  from  the  holder 
of  a  due-bill  given  by  S.  acknow- 
ledging the  payment  thereof  bv  H., 
in  all  amounting  to  $301.04.  //././ 
that  under  the  pleadings  a  decree 
for  sale  to  raise  these  sums  could 
not  be  made.  Ib. 

.  Parties  are  confined  to  the  case 
made  by  the  pleadings,  and  evidence 
to  facts  not  put  in  i-wue  cannot  be 
read.  JStfrs  of  Cavalier  v.  Huffman, 

354 

.  The  court  cannot  act  on  a  distinct 
ground  for  relief  made  by  the  proot 
if  it  be  not  set  up  in  the  bill.  Plume 
v.  Small,  460 

III.  Answer. 

,  The  substance  of  a  charge  must  be 
admitted  or  denied.  A  mere  literal 
answer  is  insufficient.  Smith  v. 


Loomis, 


60 


8.  Where  a  matter  is  charged  in  the 
I     bill  which  must,  if  true,  be  within 

the  knowledge  of  the  defendant,  the 
substance  of  the  charge  should  be 
answered  directly,  not  evasively  nor 
by  way  of  negative  pregnant.  Jb. 

9.  When  the  circumstances  charged  are 
suspicious,  or  have  the  appearance 
of   collusion  or  fraud,  a  defendant 
will  be  held   to  strict  rule  in   an- 
swering. Ib. 

10.  In  general,  an  injunction  will  not 
be  dissolved  unless  all  the  defend- 
ants implicated  in  the  charge  have 
answered.  Ib. 

11.  Every   allegation    of   the    answer 
which   is   not    directly   responsive, 
but  sets  forth  matter  in  avoidance  or 
bar,  is  denied  by  the  general  repli- 
cation and  must  be  proved  aliuncU. 
Lovelt  v.  Demarest,  113 

12.  The  facts  on  which  the  equity  of 
the  bill  rested  were  not  charged  to 
be  within  the  knowledge  of  the  ad- 
ministrator.    A  motion  to  dissolve 
on  his  answer  was  denied.     Insuffi- 
ciency of  answer  in  other  respect*. 
Williams  v.  Adm'r  of  Stephens,     119 

13.  A  denial  on  information  and  belief 
of  notice  to  another  i»  not  sufficient 


686 


INDEX. 


to  dissolve  an  injunction.     Pierson 
and  Gruet  v.  Ryerson,  196 

14.  The  denial  of  two  allegations  con- 
junctively is  not  a  denial  of  each.  Ib. 

15.  A  release  of  a  part  of  mortgaged 
premises   had   been   recorded.    An 
allegation  of  the  defendant  that  he 
never  heard  of  the  release  till  after 
he  bought,  held,  under  the  circum- 
stances, not  to  be  a  sufficient  denial 
of  knowledge  of  the  release.         Ib. 

16.  A  defence  not  raised  by  the  plead- 
ings   cannot   be   raised   by   proofs. 
Mann  v.  Bruce,  413 

17.  The  denial  in  the  answer,  of  the 
material  allegation  of  the  bill,  which 
denial  is  supported  by  a  witness  for 
the  defendant,  cannot  be  overcome 
by  a  single  witness,  in  support  of  the 
allegation  of  the  bill,  though  there 
be   discrepancies   in   other   matters 
between  the  answer  and  the  witness 
for  the  defendant.     The  Commercial 
Bank  of  New  Jersey  v.  Reckless,  430 

18.  The  uncorroborated  testimony  of  a 
single  witness  is   not  sufficient   to 
overcome  the  denial  of  an  answer. 
Ib.,  650 

19.  An    answer    may   contain    within 
itself   such    circumstances    as   will 
alone  suffice  to  deprive  it  of  all  effi- 
cacy.   Per  Chief  Justice  Green,     Ib. 

IV.  Replication,  (Effect  of.) 

Vide  MORTGAGE — PRIORITY,  4. 
ANSWER,  5. 
ABSENCE,  1. 


POWER. 
Vide  LAND,  1. 

PRACTICE. 

l.The  joint  and  several  answers  of  a 
married  woman  and  her  trustee,  to 
a  bill  against  her  trustee,  her  hus- 
band, and  herself,  put  in  without 
leave  of  the  court,  may  be  sup- 
pressed for  irregularity.  Robbing  v. 
Abrahams,  16 

2.  The  complainant  filed  his  bill  for 
bis  .proportion  of  the  interest  of  a 


surplus  in  the  hands  of  an  executor, 
and  made  his  brothers  and  sisters, 
who  were  entitled  to  equal  portions 
of  the  interest,  (if  the  complainant's 
claim  for  interest  is  good,)  defend- 
ants. They  answered  the  bill,  sub- 
mitting their  rights  to  the  protec- 
tion and  judgment  of  the  court. 
Pending  the  suit,  the  person  at 
whose  death  the  principal  was  to  be 
distributed  among  the  complainant 
and  his  brothers  and  sisters  died, 
and  thereupon  the  complainant 
settled  with  the  executor.  No  de- 
cree had  been  made  in  the  cause. 
The  complainant  was  permitted  to 
discontinue  the  suit.  Bullock  v.  Zil- 
ley,  77 

3.  Leave  to  file  a  plea  after  demurrer 
overruled  will  not  be  granted  if  it  is 
manifest  that   the   plea  offered,  if 
true  in  fact,  would  be  no  bar  to  the 
relief  sought  by  the  bill.    Seely  v. 
Price,  231 

4.  Decree  opened,  under  the  circum- 
stances,  after    enrollment,   and    on 
motion,  on  application  of  a  subse- 
quent mortgagee,  for  the  purpose  of 
charging  the  complainant,  to  whom 
a  prior  mortgage  had  been  assigned 
when  he  was  tenant  of  the  premises 
under  the  mortgagor,  and  who  filed 
a  bill  to  foreclose  the  prior  mortgage 
and  remained  in  possession  in  the 
meantime,    with    reasonable    rent. 
Moore  v.  Deyraw,  346 

Vide  AMENDMENT,  1,  2,  3 
HUSBAND  AND  WIFE,  1. 
APPEAL.  1,  2,  3,  4.       , 
INJUNCTION,  15. 


PREROGATIVE  COURT. 

1.  Motion  to  vacate  an  order  of  the 
Ordinary  vacating  an  order  to  prose- 
cute an    administrator's   bond    de- 
nied, the    Supreme    Court    having 
acted  on  the  vacating  order  and  dis- 
missed the  suit  on  the  bond.    Matter 
of  Webster's  Administration  Bond,  89 

2.  By  whom  application  may  be  made 
to  the  Ordinary  for  leave  to  prose- 
cute an  administration  bond.         Ib. 

3.  A  father  had  recovered  a  judgment 
against  one  of  his  sons,  and  caused 
an  execution  to  be  issued  thereon, 
and  put  into  the  hands  of  the  she- 


INDEX. 


687 


riff.  After  the  son's  death,  the 
father  signed  a  writing  at  the  foot 
of  the  execution  in  there  words: 
"I  hereby  discharge  J.  W.  Cald- 
well,  sheriff,  <&c.,  from  all  liability 
whatever  of  the  above-stated  execu- 
tion, the  defendant  being  dead  and 
no  further  proceeding  required  on 
the  same."  The  fatuer  afterwards 
died  intestate,  and  there  was  a  bal- 
ance of  Ins  personal  estate  for  dis- 
tribution, of  about  $14,000,  exclu- 
sive of  the  amount  of  the  said  judg- 
ment. The  deceased  son  left  three 
children,  and  six  children  of  the 
intestate  father  survived  him.  Held 
that  the  Raid  writing  given  by  the 
sheriff  did  not  discharge  the  debt  so 
as  to  entitle  the  children  of  the  de- 
ceased son  to  an  equal  seventh  of 
the  said  balance,  but  that  the 
amount  of  the  debt  should  have 
been  added  to  the  said  balance,  and 
one-seventh,  of  the  whole  sum  de- 
creed to  each  of  the  six  surviving' 
children ;  and  that  the  amount  of 
the -debt  should  constitute  so  much 
of  the  seventh  to  be  distributed  to 
and  among  the  children  of  the  de- 
ceased son.  Ballon  v.  Allen,  99 

4.  A  note  given  by  a  son  to  his  father 
is  not,  of  itself,  evidence  of  an  ad- 
vancement by  the  father.  I  b. 

5.  Proof  of  mere  parol  declarations  of 
a  father  that  he  had  fully  advanced 
a  child  is  not  sufficient  to  establish 
an  advancement.  Ib. 

6.  The  testator  gave  to  his  wife  the  use 
and  interest  of  all  his  personal  es- 
tate during  her  widowhood,  and  also 
the  use  and  possession  of  all  his  real 
estate  during  her  widowhood  and  a» 
in  hit  will  after  directed  and  limited, 
in  lieu  of  dower  ;  and  directed  that 
on   the  death   or  marriage  of   his 
widow  before  his  youngest  daughter 
attained  the  age  of  eighteen  years, 
the  surviving  executor  should  sell 
the  personal  property  bequeathed  to 
the  widow  and  place  the  proceeds 
at  interest,  and  directed   his  Bead) 
farm  to  be  Bold  when  his  youngest' 


est  and  be  equally  divided  among 
his  seven  daughters,  share  and  share 
alike,  and  paid  to  them  when  they 
should  respectively  attain  to  the  age 
of  eighteen  years;  and  devised  his 
homestead  farm  to  his  son  when  he 
should  attain  the  age  of  twenty-one 
years;  and  directed  that  in  case  his 
son  should  die  without  issue  before 
he  attained  the  age  of  twenty-one, 
the  said  homestead  should  be  sold, 
at  the  discretion  of  his  executors  or 
the  survivor  of  them,  and  the  pro- 
ceeds thereof  be  placed  at  interest, 
and  divided  among  his  surviving 
children,  share  and  share  alike,  and 
paid  in  the  manner  before  directed, 
and  appointed  the  widow  and  an- 
other executors.  Held  that  on  a  sale 
of  the  Bead  farm  by  the  widow  as 
surviving  executor,  before  the 
youngest  daughter  attained  the  age 
of  eighteen,  each  daughter  then 
under  eighteen  was  entitled  to  her 
respective  share  of  the  proceeds 
immediately.  Anderson  v.  Hender- 
son, 106 

Vide  WILL,  3. 


PRESUMPTION. 
Vide  ABSENCE,  1. 

PROBATE. 
Vide  WILL,  3. 

PURCHASER. 
Vide  VENDOR  AND  PURCHASER. 


RECEIPT. 

1.  What  proof  held  satisfactory  of  (hn 
existence,  genuineness  and  loss  of  a 
receipt  from  a  deceased  person. 
Williamson  v.  Adm'rs  of  Johnson,  537 


daughter  attained  the  age  of  eigh-  2.  On   the  discovery,   after  judgment 


teen,  or  sooner  if  his  executors  or  I 
the  survivor  of  them  should  think  it! 
most  for  the  benefit  of  the  estate; 
and  that  whenever  the  sale  of  the 
real  and  personal  estate  thus  di- 
rected to  be  sold  should  be  ma«l«-, 
the  same  should  be  placed  at  inter-' < 


against  a  surety,  of  a  receipt  dated 
in  1792,  of  which  the  surety  had 
heard  before  the  judgment  was  ob- 
tained, but  which  could  not  then  be 
found,  on  bill  filed  by  the  surety  in 
1324,  after  the  judgment  had  been 
paid,  it  was  decreed  that  the  plain* 


688 


INDEX. 


tiff  in  the  judgment  at  law  repay  to 
the  surety  the  excess  of  the  judg- 
ment over  what  it  should  have  been 
after  deducting  the  amount  of  the 
receipt  with  interest  thereon  from 
the  date  thereof,  with  interest  on 
such  excess  from  the  date  of  the 
judgment.  Ib. 


BECEIVEB. 

Vide  INJUNCTION,  15, 16, 17. 
APPEAL,  6. 


REFUNDING  BOND. 

Vide  EXECUTORS  AND  ADMINISTEA- 
TOES,  4. 

BEGISTBY. 
Vide  MORTGAGE,  3. 

.BENT. 

Fide  PARTNERSHIP,  2. 
MORTGAGE,  9. 


8. 
SALE. 

1.  Sheriff's  sale  declared  void  by  reason 
of  fraudulent  combination  to  prevent 
competition  and  the  consequent  sac- 
rifice  of  the  property.     The  Ham- 
burgh   Manufacturing    Company    v. 
Edsall,  249 

2.  On  a  sale  of  land  by  a  fiduciary,  he 
cannot  buy  either  directly  or  through 
another.     Winter  v.  Oeroe,  319 

3.  Proofs  on  which  it  was  determined 
that  ortfe  to  whom  land  was  struck 
off  at  an  executors'  sale  bought  for 
the  executors.  Jb. 

Vide  VENDOR  AND  VENDEE,  2. 

EXECUTORS  AND  ADMINISTRA- 
TORS, 6. 


SEAL. 
Vide  CORPORATIONS,  1 ,  5. 


SET-OFF. 

A  having  recovered  a  judgment  at  law 
against  B,  and  issued  execution, 
which  was  returned  ".no  goods  or 
land,"  filed  a  creditor's  bill  against 
B,  which  after  answer  was  dismissed 
with  costs.  Held  that  the  judgment 
at  law  could  not  be  set  off  against 
the  costs  of  B  in  his  defence  against 
the  creditor's  bill.  Brisley  v.  Jones, 

512 


SHEEIEF'8  SALE. 
Vide  SALE,  1. 


SPECIFIC  PEBFOBMANCE. 

1.  Courts  of  equity  will  not,  in  general, 
decree  performance  of  contracts  for 
the  sale  of   personal  property,  but 
will  decree  the  execution  of  trusts 
of  personalty.  Kimba.ll  v.  Morton,  26 

2.  Stock  in  a  bank  had  been  transferred 
to  the  defendant  to  be  by  him  trans- 
ferred in  different  portions,  one  por- 
tion of  which  was  to  be  transferred 
to  the  complainants.   A  transfer  was 
decreed.  Ib. 

3.  A  and  B  entered  into  an  agreement 
that  A  should  furnish   2700  peach 
trees    at  Ais  expense,   and   that   B 
should  plant  amd  cultivate  them  on 
his  farm,  at  his  expense,  and  should 
pick  and  market  the  fruit  during  the 
life  of  the  trees  at  the  joint  expense 
of  the  parties,  and  account  to  A   for 
half  the  net  proceeds  of  the  sales. 
The    trees     were    furnished,     and 
planted  and  cultivated  accordingly. 
A  died,  and  the  administrators  of 
his   estate  sold   his   interest  to   D. 
Held  that  D  could  come  into  this 
court   for  the   performance   of   the 
agreement,  and  for  an  account  and 
payment  of  half  the   net   proceeds 
of  the  sales.     M' Knight  v.  Bobbins, 

229,  642 

4.  By  writing  under  seal  executed  by 
heirs-at-law,  it  was  agreed  that  P., 
one  of  them,  should  have  the  outlets 
for  his  share,  and   that  the  others 
should   take   for    their    shares   the 
homestead  farm,  and  that  P.  would 
execute  to  the  other  three,  separately, 
releases   for  the  shares   which   the 
three  might  agree  that  each  of  them 


INDEX. 


689 


should  have  in  the  homestead,  when 
a  certain  mortgage  given  by  the  in- 
testate on  one  of  the  out-lots  should 
be  discharged,  and  that  as  soon  as  P. 
should  execute  such  releases,  the 
others  should  execute  releases  to  him 
for  the  share  which  it  was  thereby 
agreed  he  should  have.  P.  took 
possession  of  the  share  assigned  to 
him  by  the  agreement.  Afterwards, 
by  an  agreement  between  the  three, 
a  certain  part  of  the  homestead  was 
assigned  to  M.,  one  of  the  three,  and 
the  other  two  released  the  same  to 
her,  and  M.  released  to  the  other  two 
all  her  interest  in  the  residue  of  the 
homestead.  Previous  to  the  agree- 
ment among  the  four,  H.,  one  of  the 
heirs,  had  given  a  mortgage  on  his 
undivided  interest  in  the  whole  real 
estate.  M.  filed  a  bill  against  P.  for 
the  specific  performance  of  the 
agreement  on  his  part  to  release  to! 
her  the  share  so  assigned  to  her, 
tendering  a  release  of  her  interest 
in  his  share.  Neither  of  the  said 
mortgages  was  paid  at  the  time  of 
the  tiling  of  the  bill,  but  the  mort- 
gage given  by  the  intestate  was  paid 
before  the  hearing  of  the  cause,  and 
the  mortgage  given  by  H.  on  hl.« 
undivided  interest  in  the  estate  had 
been  foreclosed  and  his  interest  Bold, 
and  the  complainant  produced  at  the 
hearing  an  agreement  by  the  pur- 
chaser to  abide  by  the  agreement  for 
partition  and  to  execute  releases  un- 
der it.  Held  that  performance  of  an 
agreement  to  execute  a  release  of 
real  estate  may  be  decreed,  and  that 
performance  may  be  decreed  if  the 
party  asking  it  is  able  and  willing, 
at  any  time  before  the  decree,  to 
perform  his  part  of  the  contract. 
It  was  referred  to  a  master  to  ascer- 
tain whether  the  complainant  was 
able  to  procure  a  release  to  P.  from 
the  present  owner  of  H.'s  share  and 
from  the  remaining  heirs.  Soper  v. 
Kipp,  383 

6.  Specific  performance  of  an  agree- 
ment among  heirs  for  partition  can- 
not be  resisted  on  the  ground  that 
the  defendant,  in  taking  the  part  as- 
signed to  him,  contemplated  the  sale 
of  it,  and  that  by  reason  of  mort- 
gages existing  at  the  time  of  the 
agreement  he  was  unable  to  sell  the 
part  assigned  to  him,  he  knowing 
of  the  mortgages  at  the  lime  of 
the  agreement,  and  one  of  them, 
given  by  the  intestate,  being  paid 


before  the  hearing,  and  the  other, 
given  by  one  of  the  heirs  on  his  un- 
divided interest  in  the  whole  estate, 
having  been  foreclosed  and  such  in- 
terest sold,  and  the  complainant 
proffering  a  release  from  the  pur- 
chaser of  all  his  interest  in  the  share 
of  the  defendant.  ///. 

6.  Held,  that  under  the  circumstances, 
the  other  heirs  were  not  necessary 
parties  to  the  suit.  7  b. 

7\  On  a  bill  by  a  vendee  for  the  specific 
performance  of  an  agreement  for  the 
sale  of  lands,  if  the  vendee  has  per- 
formed a  valuable  part  of  the  con- 
tract, and  is  in  no  default  as  to  the 
performance  of  the  residue,  perform- 
ance will  be  decreed.  Hulmes  v. 
Thorpe,  415 

8.  A  slight  variation  or  default  on  the 
part  of  the  vendee  in  the  perform- 
ance of  work  to  be  done  by  him  be- 
fore the  deed  was  to   be  delivered, 
will   not  prevent  a  decree  for  spe- 
cific performance  if  the  difference  ia 
a  proper  subject  for  compensation  in 
money.  1  b. 

9.  In  decreeing  performance,  the  court 
may  give  a  day  and  prescribe  equit- 
able conditions.  Ib. 

10.  Semble.  That,  as  a  general  rule,  the 
court  will  not  make  a  decree  that  a 
husband  who  has  contracted  to  sell 
lands  shall  procure  his  wife's  execu- 
tion  and   acknowledgment    of   the 
deed.  Ib. 

11.  By  agreement  under   seal,  J.  A. 
covenanted  to  sell  to  G.  V.  a  tract 
of  land,   and   to   make  to  6.  V.  a 
warrantee  deed  therefor,  possession 
to  be  given  on  the  1st  of  April  then 
next ;  and  G.  V.,  for  and  in  consid- 
eration of  the  paid   tract  of  land, 
covenanted  to  pay  J.  A.  $  1850, 1200 
on  the  1st  of  April  then  next,  $400 
in  one  year  thereafter,  and  the  bal- 
ance in  installments  of  f  200  a  year, 
all  with  interest,  until  all  should  be 
paid.     On  the  day  fixed  for  the  first 
payment,  G.  V.  tendered  $200  and 
demanded  the  deed  and  possession. 
J.  A.  refused  to  give  the  deed  unless 
G.  V.  would  execute  to  him  a  mort- 
gage on  the  premises  to  secure  the 
subsequent  payments.    On  bill  filed 
by  G.  v .  for  the  specific  performance 
of  the  agreement,  the  relief  sought 


690 


INDEX. 


was  denied.    Van  Scolen  v.  Albriqh 

46 
Vide  INJUNCTION,  2. 

T. 

TENANT. 
Vide  MORTGAGE,  9. 

TENANTS  IN  COMMON. 
Vid*  PARTITION,  3,  4,  5. 

TIMBER. 

l.'When  there  is  no  charge  in  the  bill 
that  a  tract  of  timber  land  from 
which  the  defendant  is  enjoined  from 
cutting  belongs  to  the  estate  of  which 
the  complainants  are  devisees,  anc 
the  answer  denies  that  the  timber 
belongs  to  the  estate  and  avers  that 
it  belongs  to  the  defendant,  the  in- 
junction will  be  dissolved.  Cooper 
v.  Cooper, 

2.  A  large  tract  of  pine  land  owned  in 
connection  with  a  glass  factory,  for 
the  ordinary  uses  of  which  the  own- 
ers from  time  to  time  cut  wood  from 
the  pine  land,  was  mortgaged.  After 
the  giving  of   the  mortgage,  a  fire 
swept   over  a   large,  portion  of  the 
tract,  killing  the  timber  standing  on 
it.   The  mortgagors  commenced  cut- 
ting down  the  burnt  timber,  propos- 
ing to  cut  it  all  down,  alleging  that 
it  was  necessary  to  do  so  as  well  to 
save  the  wood  from  rotting,  as  for 
the  permanent  benefit  of  the  estate 
in  reference  to  the  new  growth.  The 
mortgagees  filed  a  bill  and  obtained 
an  injunction   against   the  cutting. 
The  bill  did  not  pray  a  foreclosure, 
the  whole  money  not  having  become 
payable.  On  answer,  stating  the  facts 
aa  to  the  business  and  the  propriety 
of  felling  the  burnt  timber,  and  offer- 
ing  to  give   other  security   for  an 
amount  equal   to  the  value  of   the 
burnt  wood   which   the   mortgagors 
proposed  to  cut,  a  reference  was  or- 
dered to  ascertain  such  value,  with 
a  view  of  directing  such  security  to 
be  given.    Brick  v.  Gelsinger,      391 

3.  Semble.  If  a  large  portion  in  value 
of   pine    woodland    mortgaged    be 
burnt    over,  and    it    be    proper  to 
B*ve  the  burnt  wood  from  rotting 


and  for  the  permanent  benefit  of  the 
estate  in  reference  to  the  new  growth, 
that  the  burnt  wood  be  cut  off,  the 
land  being  worth  little  without  wood 
on  it,  it  would  be  right  that  the 
burnt  wood  so  cut  should  be  applied 
towards  paying  the  mortgage.  Ib. 

Vide  INJUNCTION,  3. 


TITLE. 
Vide  PARTITION,  3. 

TRESPASS. 

Vide  INJUNCTION,  3. 


TRUST  AND  TRUSTEE. 

1.  A  general  charge  of  abuse  of  trust 
is  not  sufficient  ground  for  the  inter- 
position of  the  court  to  restrain  an 
executor  or  other  trustee  from  fur- 
ther   interfering    with    the    estate. 
Facts  showing  such  abuse  should  be 
made   to   appear.     What  facts  not 
sufficient.     Cooper  v.  Cooper,  9 

2.  When  the  legal  and  equitable  estates 
are  united  in  the  same  person,  the 
equitable   estate   is   merged   in  the 
legal.  Ib. 

3.  A  trustee  for  the  use  of  his  children 
of  a  tract  of  land  called  the  Abbot 
tract  made  his  will,  by  which,  after 
giving  particular  parts   of  his  real 
estate  to  his  children  respectively, 
he  directs  his  executors  to  sell  some 
of  his  lands,  expressly  excepting  the 
Abbot  tract  from  the  power  to  sell, 
and  then  divises  all  the  residue  of 
his  estate,  real  and  personal,  to  his 
children.     On  the  death  of  the  tes- 
tator, the  legal  estate  in  the  Abbot 
tract    vested    in    his  children,   the 
cesluis  que  trust.  Ib, 

[.  Courts  of  equity  will  decree  the 
execution  of  trusts  of  personalty, 
though  they  will  not  in  general  de- 
cree performance  of  contracts  for  the 
sale  of  personal  property.  Kimball 
v.  Morton,  25 

).  Stock  in  a  bank  had  been  transferred 
to  the  defendant,  to  be  by  him 
transferred  in  difierent  portions,  one 


INDEX. 


691 


portion  of  which  was  to  be  trans- 
ferred to  the  complainants.  A  trans- 
fer was  decreed.  Ib. 

6.  The  statute  of  frauds,  requiring  de- 
clarations of  trust  to  be  in  writing, 
does  not  extend  to  trusts  of  person- 
alty. 

7.  A  and  B  held  a  mortgage  given  to 
them  as  trustees  on  the  undivided 
half  of  a  mill-seat.     B,  in  his  own 
right,  held  a   subsequent  mortgage 
on  the  same  half.    On  proceedings 
for  partition  between  the  owners  of 
the  mill-seat,  it  was  ordered  to  be 
sold  at  auction,  and  was  BO  sold  by 
the  commissioners.     The  order  for 
sale  and  the  conditions  of  sale  were 
silent  as  to   whether   the   property 
was  to  be  sold  subject  to  or  free  from 
encumbrance.  Held  that  parol  proof 
was  admissible  to  show  that  B  was 
present  at  the  sale,  and  agreed  that 
the  property  should  be  sold  free  from 
encumbrance,  and-received  from  the 
commissioners  the  mortgagor's  half 
of  the  proceeds  of  the  sale,  knowing 
that  the  purchaser  paid  the  money 
understanding  that  the  property  was 
sold  free  from  encumbrance,  and  thatj 
Vhe  mortgages  were  to  be  canceled.! 
B  applied  a  part  of  the  money  hej 
received  to  the  payment  of  his,  the 
junior,  mortgage,  in  full,  and  the  res-; 
idue  of  it  towards  paying  the  mort- 
gage of  the  trustees,  thus  leaving  a 
balance  due  on  that  morigage.     The| 
half  of  the  proceeds  of  sale  received, 
by  B  was  sufficient  to  pay  the  morl^ 
gage  to  the  trustees,  and  part  of  the 
mortgage  held  by  B  in  his  own  right.' 
Held  that  the  mortgage  to  the  trus-j 
tees  was  satisfied.    Rogers  v.  Rogers, 

32 

8.  A  husband  bought  real  estate,  and 
directed  the  deed  therefor  to  be  made 
to  another  in  trust  for  his  wife  and 
her  heirs,  so  that  the  same  should 
not  be  subject  to  his  control  or  debts,' 
and  on  the  further  trust  to  convey 
the  same  to  such  person  or  persons, 
for  such   uses,  and  subject  to  such 
provisions,   limitations   and    agree- 
ments as  the  wife,  by  writing  under 
seal  or  by  will,  should  give,  limit  or 
appoint.     The  trustee  and  the  wife 
afterwards  executed  a  mortgage  of 
the  lands  to  secure,  a  debt  due  from 
the  husband,  and  the  mortgage  was 


9.  A  trustee  who,  from  long  continued 
intemperance,  has  become  unfit  to 
have  the  charge  of  the  trust  property, 
will  be  removed,  and  a  new  trustee 
will  be  appointed.     Buyles  v.  Staat*, 

513 

10.  Several  executions  had  been  levied 
by  a  sheriff  on  the  lands  of  ''  The 
Hamburgh  Company,"  of  which  the 
first  in  priority  was  in  favor  of  E. 
The  same  sheriff  had  in  his  hands 
at  the  same  time  an  execution  issued 
on  a  decree  in  chancery' on  the  first 
mortgage,  for  the  sale  of  the  mine 
farm  of  ''The  Clinton  Manufactur- 
ing Company,"  and   also  an   execu- 
tion at  law  against  the  said  Clinton 
company,  by  virtue  of  which  he  had 
levied  on  the  said  Clinton  company's 
mine  farm.     E.  held  a  subsequent 
mortgage  on  this  Clinton  mine  farm. 
Prior  to  the  sale  by  the  sheriff,  cer- 
tain creditors  of  the  Hamburgh  com- 
pany, having  no  judgments,  together 
with   K.  entered  into  an  agreement 
in  writing   among  themselves  that 
L.,  one  of  them,   should,  as   their 
trustee,  buy  the  lands  of  both  com- 
panies as  a  means  of  securing  their 
debts  against  the  Hamburgh  com- 
pany, including  E.'s  judgment  and 
other  claims  he  had  or  made  against 
the  company  and  his  mortgage  on 
the  Clinton  mine  farm.     There  was 
also  an  understanding  with  P.,  who 
held  the  bulk  of  the  stock  of  both 
companies,  and  was  carrying  on,  or 
conducting     the     business     of   the 
Hamburgh  company,  that  the  said 
trustee  should  convey  both  proper- 
ties to  him  on  his  payment  of  the 
debts   of   the  said   agreeing   Ham- 
burgh creditors,  and  the  sums  for 
which    the    properties    should    be 
struck  off  to  the  said  trustee.     The 
properties  were  sold  by  the  sheriff 
and  bought  by  the  said  L.,  the  other 
judgment  creditors  of  the  Hamburgh 
company  not   being  present  at  the 
sale.     The  sheriff's  deed  to  L.  wa* 
absolute.     On    a  bill   filed   by   the 
Hamburgh  company  and  P.,  it  waa 
held  that  L.  was  a  trustee  for  the 
Hamburgh  company  and  its  credi- 
tors both  of  the  Hamburgh  property 
and    of    the     Clinton    Company's. 
Edsall  v.  The  Hamburgh  Manufac- 
turing Company,  658 


duly  acknowledged  by  the  wife.! 
Held  that  the  mortgage  was  good.' 
Bobbins  v.  Abrahams,  465 


Vide  PRACTICE,  1. 

EXECUTORS  AND 

TORS,  6. 


ADMIKISTRA- 


692 


INDEX. 


Vide  SALE,  2,  3. 

INJUNCTION,  14. 
FRAUD,  1. 


U. 
USURY. 

1.  A,  living  in  New  York,  sells  to  B, 
also  living  in  New  York,  a  tract  of 
land  in  New  Jersey,  and  takes  his 
bond  for  part  of  the  consideration 
money  with  seven  per  cent,  interest, 
and  his  mortgage  on  the  lands  con- 
veyed, to  secure  the  payment  of  the 
bond.     The  mortgage  is  not  usuri- 
ous. Cotfieal  v.  HJydenburgh,  17,  631 

2.  The  exchange  of  the  papers  in  New 
Jersey  at  the  proper  record  office  will 
not  make  the  mortgage  usurious,  they 
having  been  executed  and  acknow- 
ledged in  New  York,  and  a  sufficient 
reason    for  not    exchanging    them 
there  being  shown.  Ib. 


V. 

VENDOK  AND  PURCHASER. 

1  JSemble.  That  a  purchaser  for  full 
value  is  entitled  to  have  an  encum- 
brance removed  by  the  application 
to  that  purpose  of  a  sufficient  por- 
tion of  the  purchase  money.  Washer 
v.  Brown,  81 

2.,  The  conditions  of  sale  for  the  sale 
of  lands  and  buildings  provided  for 
the  sale  of  the  buildings  separately, 
and  one  of  the  conditions  of  the  sale 
was  as  follows :  "The  buildings  will 
be  sold,  to  be  removed  within  thirty 
days  from  this  date  from  the  pre- 
mises." Held  that  the  purchaser  of 
a  building  who  also  purchased  the 
lot  on  which  it  stood,  was  not  bound 
to  remove  the  building.  Plume  v. 
Small,  460,  650 

Vide  MORTGAGE,  4,  5,  6. 

SPECIFIC  PERFORMANCE,  7,  8,  9. 
EXECUTORS  AND  ADMINISTRA- 
TORS, 5. 


W. 

WASTE. 
PARTITION,  1,  4. 


WATER  RIGHTS. 
Vide  INJUNCTION,  7,  8,  11, 18,  19. 

WILL. 

1.  A,  by   his  will,  provided  that  his 
wife  should  have  her  lawful  right  of 
dower  out  of  his  estate  ;  that  the  exec- 
utor should  sell  and  dispose  of  all  his 
estate,  both  real  and  personal ;  that 
his  debts  he  paid,  that  his  brother 
John  have'$500,  his  brother  James 
$100,  and  that  the  rest  and  residue 
of  his  estate  be  divided  between  his 
two  sons.     On  bill  filed  by  the  wid- 
ow, stating  among  other  things,  in- 
structions given  by  A  to  the  person 
who  drew  the  will,  so  to  draw  it  as 
to  give  her  her  lawful   third  of  the 
personal   property  and   a   use  of  a 
third  of  his  lands  for  life,  and   de- 
murrer to  the  bill,  it  was  held  that 
the  widow  was  entitled  to  her  lawful 
third  of  the  personal  estate.     Adam- 
son  v.  JSx'r  of  Adamson,  349 

2.  Semble.  That  the  situation  of  the  es- 
tate as  to  the  comparative  amounts 
of   realty   and    personalty    may  be 
shown,  to  influence  the  construction 
of  a  will.  Ib, 

3.  A  writing  purporting  to  be  executed 
by  P.  J.  by  a  mark,  which  writing, 
with  the  names  of  all  the  persona 
whose  names  were  subscribed  as  wit- 
nesses, and  the  name  of  P.  J.  were  in 
the  handwriting  of  ono  of  the  persona 
whose  name   was  subscribed    as    a 
witness,  not  admitted  to  probate  on 
proof  that  the  signature  of  the  per- 
son who  wrote  the  will  and  signa- 
tures was  her  handwriting,  and  that 
she  was  deud.  In  the  matter  of  a  writ- 
ing purporting  to  be  the  Will  of  Pa- 
mela Jolly,  456  • 

4.  The  testator,  S.  S.  O.,  by   his  will, 
gives  to  his  aunt,  A.  P.  W.,  $10.000, 
to  be  paid  to  her  as  soon  as  practi- 
cable after  his  decease,  or  with  in- 
terest from   that    time,   and    gives 
several   other   money  legacies.     He 
then  makes  specific  bequests  of  fur- 
niture and  other  articles  of  personal 
property,    nnd    then    says    that    he 
wishes   his   bank    stock  to  make   a 
part  of  his  dear  aunt's  legacy,  as  it 
will  give  her  less  trouble  in  collect- 
ing.   The  will  then  provides  thus: 
"Item,  After  all  rayju«t  debts  are 


INDEX. 


693 


paid  and  the  expense  of  fulfilling 
this  my  last  will  and  testament,  I 
give  and  bequeath  all  the  remainder 
of  my  property,  both  real  and  per- 
sonal, to  be  equally  divided  among 
my  four  cousins,  (naming  them.) 
Item,  I  wish  that  the  house  I  have 
lately  purchased  of  C.  M.  Campbell, 
valued  at  $4000,  to  be  part  of  my 
dear  aunt's  legacy,  and  that  in  the 
division  of  her  portion,  my  Trenton 
Bunk  stock  be  calculated  at  $40  per 
share,  and  my  Easton  Bank  at  $30 
per  share."  And  by  a  codicil  to  his 
said  will  he  gave  to  his  said  aunt, 
A.  P.  W.,  in  fee  simple,  a  lot  of  land 
(describing  it)  containing  fifteen 
acres,  and  all  the  plate  in  his  house, 
and  some  other  articles  of  personal 
property,  and  also  gave  by  the  cod- 
icil three  other  money  legacies,  one 


of  $200,  one  of  $50,  and  one  of  $7-5. 
Hi-Id  that  the  lands  devised  in  the 
residuary  clause  of  the  will  were 
not  chargeable  in  aid  of  the  per- 
sonal estate  with  the  payment  of  ihe 
legacies,  but  that  the  personal  enlaie 
being  insufficient  to  pay  the  legacies, 
they  must  abate.  Ex'ra  of  Olden  v. 
White,  629 


,  D.  Q.,  the  testator,  gave  the  remain- 
der of  his  real  estate  to  his  three 
children,  P.,  the  wife  of  C.  W.,  C., 
the  wife  of  W.  S.,  and  B.  G.,  in  fee 
simple,  to  be  divided  or  sold  as  two 
out  of  the  three  could  agree,  and  ap- 
pointed \V.  S.  and  B.  G.  executors  of 
the  will.  Held  that  the  executors 
had  no  power  to  sell  or  to  divide  the 
real  estate.  Qeroe  v.  Winter,  555 


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